California Court of Appeal Nov 6, 2013 No. E052779MUnpublished
Filed 11/6/13 Hudack v. Siggard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARIANNE S. HUDACK et al.,
Plaintiffs, Cross-defendants and E052779 Appellants, (Super.Ct.No. RIC450529) v.
WAYNE SIGGARD,
Defendant, Cross-complainant and Respondent;
MONTELEONE CONTRACTORS, INC. et al.,
Defendants and Respondents.
MARIANNE S. HUDACK et al.,
Plaintiffs and Appellants, E053129
v. ORDER MODIFYING OPINION AND DENYING WAYNE SIGGARD et al., PETITION FOR REHEARING
Defendants and Respondents. [NO CHANGE IN JUDGMENT]
1
The petition for rehearing is denied. The opinion filed in this matter on October
17, 2013, is modified as follows:
In the first paragraph on page 11 of the opinion, the second complete sentence
reads: “On approximately March 25, Siggard submitted his grading permit and maps of
his grading plans to the Association.”
The sentence is modified to read as follows:
“On approximately March 25, Siggard submitted his agricultural exemption and
Except for this modification, the opinion remains unchanged. The modification
does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RICHLI Acting P. J.
CODRINGTON J.
2
Filed 10/17/13 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARIANNE S. HUDACK et al.,
Plaintiffs, Cross-defendants and E052779 Appellants, (Super.Ct.No. RIC450529) v.
WAYNE SIGGARD,
Defendant, Cross-complainant and Respondent;
MONTELEONE CONTRACTORS, INC. et al.,
Defendants and Respondents.
MARIANNE S. HUDACK et al.,
Plaintiffs and Appellants, E053129
v.
WAYNE SIGGARD et al., OPINION
Defendants and Respondents.
1
APPEAL from the Superior Court of Riverside County. Dallas Holmes (retired
judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of
the Cal. Const.), Thomas H. Cahraman and Bernard Schwartz, Judges. Affirmed.
Buchalter Nemer, Robert M. Dato; Circuit, McKellogg, Kinney & Ross and
Robert Keith McKellogg for Plaintiffs, Cross-defendants and Appellants Marianne S.
Hudack, Larry J. Hudack and Larry J. and Marianne S. Hudack Trust UTD July 3, 1997.
The Rossell Law Firm, Craig N. Rossell; The Ehrlich Law Firm and Jeffrey Isaac
Ehrlich for Defendant, Cross-complainant and Respondent Wayne Siggard.
The Rossell Law Firm and Craig N. Rossell for Defendants and Respondents
Monteleone Contractors, Inc. and Ryan Monteleone.
Pamela J. Walls, County Counsel and Lisa A. Traczyk, Deputy County Counsel
for Defendant and Respondent County of Riverside.
Kramer, Deboer, Endelicato & Keane, Jeffrey S. Kramer, Sandra Calin and
Elizabeth D. Beckman for Defendant and Respondent La Cresta Property Owners
Association.
I.
INTRODUCTION
This case arises from a dispute between neighbors. Wayne Siggard (Siggard)
caused land he owned to be graded. Siggard’s neighbors, Marianne Hudack (Marianne)
and Larry Hudack (Larry)1 (collectively “the Hudacks”), found the grading to be
1 We use first names for clarity and ease of reference; no disrespect is intended.
2
problematic. In a fifth amended complaint, the Hudacks sued (1) Siggard;
(2) Monteleone Contractors, Inc. (Contractor); (3) Ryan Monteleone, an individual
doing business as Monteleone Excavating (Monteleone); (4) La Cresta Property Owners
Association (the Association); (5) Sergio Ochoa; and (6) Laura Ochoa. The causes of
action concerned (1) a violation of the California Environmental Quality Act (CEQA);
(6) negligence; (7) breach of fiduciary duty; (8) breach of contract by failing to enforce
CC&Rs; and (9) negligence.
H. WRIT OF MANDATE AND CEQA RULINGS
The hearing on the petition for a writ of mandate took place on April 4, 2007.
After taking the matter under submission, Judge Cahraman granted the writ on May 22,
2007. The writ directed County to “vacate and set aside its approval of the agricultural
exemption to the permit requirements; and (2) take such action as may be necessary to
bring the project into compliance with [CEQA], sections 21000, et seq., of the Public
Resources Code.”
On June 18, 2007, the Hudacks filed a motion requesting a hearing on the
additional remedies requested in their second amended complaint concerning the
alleged CEQA violation. In addition to the writ, the Hudacks requested Siggard (1) be
required to restore his property to the condition it was in prior to his grading activity;
19
and (2) “be prohibited from seeking any discretionary land use approval for the Property
for a period of five (5) years.”
On September 5, 2007, County filed its initial return to the writ of mandate. The
return reflected (1) County invalidated Siggard’s agricultural grading exemption; and
(2) an additional return to the writ would be filed if Siggard applied for another grading
permit or agricultural exemption and County’s Building Department approved the
permit or exemption. Judge Cahraman held a hearing on the Hudacks “additional
remedies” motion on September 19, 2007, and took the matter under submission.
On November 15, 2007, the trial court denied, without prejudice, the Hudacks’
request to preclude Siggard from obtaining land use approvals. The trial court
scheduled a hearing on the request to direct Siggard to restore his property to its
pregraded condition. The trial court also scheduled a hearing for an order to show cause
“why the court should not refer [the] matter to a referee.” The court held a hearing on
the restoration and referee issues on January 22, 2008, and took the matters under
submission.
On February 7, 2008, the trial court appointed a referee. The trial court ordered
the following factual question be resolved: “What remedial action, if any, should []
Siggard be required to perform with regard to the changes he made to his land? The
analysis should be based on the environmental damage done and its effect on the
Hudacks, if any.” The trial court ordered Siggard and the Hudacks equally share the
cost of the referee. Judge Cahraman reassigned the case to the civil master calendar
department.
20
I. SALE OF SIGGARD’S PROPERTY
On July 1, 2008, Siggard lost his La Cresta property to foreclosure. Washington
Mutual Bank acquired Siggard’s property. On August 4, 2008, the Hudacks’ attorney,
R. Keith McKellogg (McKellogg), sent a letter to the realtor handling the sale of
Siggard’s former property. McKellogg wrote that he understood the listing price for
Siggard’s former property would be $400,000. McKellogg offered for the Hudacks to
purchase the property for $50,000. McKellogg asserted the $400,000 listing price failed
to take into account the $250,000 to $300,000 cost of restoring the property to its
pregraded condition.
Siggard’s former property was purchased by Sergio and Laura Ochoa
(collectively “the Ochoas”) in January 2009. The Ochoas planned to build a retirement
home on the property. After purchasing the property the Ochoas applied to the
Association for permission to construct a fence across the front of the property. The
Ochoas also wanted to remove a tree or bush that was located along the border with the
Hudacks’ property. The Association approved the fence but recommended the Ochoas
introduce themselves to the Hudacks and ask the Hudacks if it would be okay to remove
the tree or bush.
Sergio Ochoa (Sergio) called Larry. Sergio told Larry about his plans to build a
fence and remove a bush. Larry asked if the Ochoas had already closed escrow. Sergio
responded, “Yes,” and asked, “Why?” Larry said the property was involved in
litigation, which Sergio had not known about. Larry told Sergio, “[Y]ou’re going to be
in a bunch of trouble,” due to the litigation. Sergio and Larry agreed to meet in person.
21
At the meeting, on February 14, Larry told Sergio the details of the lawsuit. Larry told
Sergio that he would “give [him] some time to get out of the sale of the property,” but
that if Sergio remained the owner of the property then the Hudacks would name the
Ochoas as defendants in their lawsuit. Larry also offered to purchase the property from
the Ochoas but for “much” less than the Ochoas paid for it. Eventually, the Hudacks
named the Ochoas in their lawsuit.
J. REFEREE’S REPORT AND SIGGARD’S DEMURRER
The referee held an evidentiary hearing on April 30, 2009. In a proposed report,
the referee found (1) Bear Creek is a blue line stream2 “within the jurisdictional
authority of the Department of Fish & Game and is considered a sensitive habitat”;
(2) there was a natural spring that fed the oak trees on the Hudacks’ property, and that
spring was dammed by the 2006 grading on Siggard’s property; (3) Siggard exceeded
his agricultural grading exemption by (a) grading for roads, and (b) excavating
approximately 33,520 cubic yards of dirt; (4) Siggard’s property experienced substantial
erosion when it rains, which caused sediment to fall into Bear Creek; and (5) the
grading was done without proper soil compaction. The referee concluded the banks of
Bear Creek and the creek itself needed to be restored.
The referee recommended the trial court (1) find Siggard and his successors in
interest “jointly and severally liable for all costs related to remediation of the subject
2 A “blue line stream” is a stream that appears as a blue line on the U.S. Geological Survey Maps. (Riverside County Flood Control and Water Conservation District, Glossary of Flood Control Terms <http://rcflood.org/RCFCInternetText/Glossary.html> (as of September 27, 2013).
22
property”; (2) designate a project engineer to supervise the remediation of the property;
and (3) order the remediation be completed by October 15, 2009.
In September 2009, Siggard demurred to the Hudacks fifth amended complaint.3
In the demurrer, it was argued that CEQA “does not specifically authorize an injunction
in order for a property owner to return [a] property to a pre-graded state.” In other
words, the remedy the Hudacks were seeking did not comport with the CEQA [cause
of] action. Siggard asserted the appropriate action under CEQA was for County to
conduct an environmental review.
Judge Schwartz ruled on the demurrer. The trial court concluded CEQA did not
grant the court authority to issue an injunction ordering Siggard to return the property to
its pregraded condition. The trial court reviewed the referee’s report and noted that
restoration of the property was never found to be required by CEQA in that an
environmental impact report was never prepared. The court concluded it had the
authority to stop the grading, but ordering restoration would be problematic because it
would be a second project occurring on the property without an environmental impact
report. The court held the proper remedy would be “to remand the project back to the
lead agency to conduct the appropriate review.” The trial court sustained the demurrer
to the Hudacks’ CEQA cause of action without leave to amend. The trial court also
vacated the scheduled hearing to consider the referee’s findings.
3 See our Introduction, ante.
23
K. THE HUDACKS BECOME OWNERS OF SIGGARD’S FORMER
PROPERTY
The Ochoas filed a cross-complaint against the bank to rescind the sale of the
property. The Ochoas’ lawsuit “didn’t get that far”—they “didn’t succeed in litigation.”
The Ochoas sold Siggard’s former property to the Hudacks. The Hudacks paid the
same purchase price as the Ochoas plus $20,000 for legal fees, but the Ochoas still lost
money on the transactions due to the payments of closing costs, attorneys’ fees, and
taxes.
On January 11, 2010, the Hudacks graded Siggard’s former property without a
permit, claiming reliance on an agricultural exemption and an emergency notification
filed with the Department of Fish and Game. Larry asserted he was grading in order to
mitigate the damage caused by Siggard’s grading, while also preparing the land for
farming. The Hudacks’ grading was performed by an unlicensed contractor.
The Association contacted County’s Code Enforcement Unit in regard to the
Hudacks’ grading activity. Code Enforcement Officer Farlow inspected the former
Siggard property on January 12, 2010. Farlow saw “three small loaders working in and
around . . . a riparian feature.” Farlow spoke to Larry. Larry told Farlow that he was
trespassing. Larry also told Farlow he was grading under an agricultural exemption.
Farlow told Larry that the creek likely fell within the jurisdiction of the Department of
Fish and Game. Larry responded, “‘Fish and Game can deal with my lawyer.’” After
that comment, Farlow left. Farlow discovered Larry never applied for an agricultural
24
grading exemption; however, he might not have needed to apply since he was
expanding his farming activity from a parcel he owned onto Siggard’s former property.
On March 5, 2010, the Association’s management company sent the Hudacks a
cease and desist letter, directing them to stop grading their property because they had
not applied to the Association’s Architectural Committee for approval of the grading
work.
L. PRETRIAL DISCUSSIONS
Judge Holmes presided over the trial and pretrial motions. On July 12, 2010, the
trial court ordered the parties to work together to create jury instructions and a special
verdict form, prior to the jury being selected. On July 15, the parties submitted
proposed instructions. The court issued a ruling on the proposed instructions. The
parties also presented the trial court with a joint special verdict form.4 The trial court
commented, “[T]his is the longest special verdict form I have ever seen, but that may
not be a bad thing. I’m trying to convince myself.”
On July 19, the trial court and the parties finalized the instructions. The court
discussed the special verdict form and the various changes proposed by the parties.
Eventually, the trial court validated the special verdict form that was submitted in the
days prior to July 19. The special verdict form was 20 pages long and included 92
questions.
4The reporter’s transcript reflects the special verdict form was discussed on July 7, 2010. The register of actions reflects the special verdict form was discussed on July 16, 2010.
25
M. TRIAL
During trial, Siggard testified that the Hudacks trespassed and encroached on the
northwest corner of his property by constructing a road that entered three or four feet
onto his property and went a distance of approximately 100 feet along his property.
Siggard was unsure the value of the damages caused by the alleged trespass and
encroachment, but asserted he was unable to use the portion of his property that was
encumbered by the road.
Siggard asserted the Hudacks created a nuisance on his property by
“intentionally and maliciously [tying his] property up so that [he] could not sell it, could
not use it, and caused [him] to lose his property.” Siggard also asserted the Hudacks
created a nuisance by causing him to be unable to plant 200 avocado trees. Siggard
testified he was not aware of the Hudacks creating an unhealthful condition on his
property. Siggard estimated the damage for the nuisance to be “[i]n excess of a million
dollars.” Siggard based the estimate on “[t]he value of the lot at the time it was tied up,
as opposed to what was owed at the time it was ti[ed] up.” Siggard believed the
Hudacks should pay for the various expenses he incurred, for which he was unable to
recover due to being unable to sell the property, such as the money spent on property
taxes, engineering plans, and grading. The million dollars also included the time
Siggard spent representing himself as an attorney in the Hudacks’ case—time that
Siggard could have spent earning money. Siggard appeared in pro per until
approximately 60 days before trial.
26
In regard to his intentional infliction of emotional distress claim, Siggard testified
that he suffered “[s]leeplessness, suicidal thoughts, homelessness, lack of prestige in the
community, [and] slander.” Siggard said he did not receive medical treatment for these
issues because he was unable to afford such treatment. Siggard testified he had been
homeless for approximately one year and was homeless at the time of trial.
N. INSTRUCTIONS
The trial court gave the jury the following instructions concerning Siggard’s
damages: “Now, here are the specific items of economic damages claimed by Cross-
Complainant [] Siggard: The Christensen survey; the cost of grading in 2006; number
3, the cost of the agricultural exception to the grading permit; number 4, the harm to []
Siggard’s property. To recover damages for harm to property, [] Siggard must prove
reasonable out-of-pocket loss, and the cost of repairing the harm. To determine whether
out-of-pocket loss and the cost of repairing [the] harm is reasonable, you must decide if
there’s a reasonable relationship between the cost of repair and the harm caused by the
Hudacks’ conduct. You must consider the expense and time involved to restore the
property to its original condition compared to the actual value of the property. If you
find that the cost of repairing the harm is not reasonable, you may award any reduction
in the property’s value; and the fifth item of economic damages claimed by [] Siggard,
the loss of use of his property. To recover damages for the loss of use, [] Siggard must
prove the benefit obtained by the Hudacks because of their wrongful occupation.”
27
O. CLOSING ARGUMENT
During Siggard’s closing argument, Siggard’s attorney, Craig Rossell (Rossell),
argued the Hudacks “committed a gross nuisance as towards [] Siggard, because they
interfered with his loss and enjoyment of the property and life. That’s what nuisance
is.”
In regard to economic damages, it appears from the record Rossell was referring
to a document, slide, or other projected image while presenting his argument. Rossell
argued: “Damages of [] Siggard, economic damages. There’s the purchase price, and
here is the 2003 development expense, and we broke that out ever so slightly. Then
there’s the 2006 surveying expense, and there’s the 2006 grading with [Contractor].
Then, there’s some more expense of 2006, LSA, and the [storm water pollution
prevention plan], that wasn’t necessary. Mr. Miller testified it wasn’t necessary. The
conservation plan that was already in the original application was sufficient. That’s
what he told us, and yet [] Siggard was given notice [of] violation as a result of
[Larry]’s excessive campaign to discredit him. He incurred another $11,000 for a
[storm water pollution prevention plan], and he only needed one or the other. We have
erosion control materials that were laid down in 2006. We have lost equity on the
parcel. How do we get at that? We take the Noble Tucker fair market value estimate,
and we back out what was owed. [] Siggard originally said three and a quarter.
[McKellogg] corrected him. It was 364. So we took the right number and we backed it
out, and we got 236. Then we have property taxes for an eight year period, homeowner
fees for that same period, and it gives us a total of $462,200. That’s what we claim his
28
out-of-pocket damages are for interference, loss of use and enjoyment of the property,
property rights and life. That’s the economic part.”
P. VERDICT
First, the jury found Siggard encroached on the Hudacks’ property, but the
encroachment was not a substantial factor in causing harm to the Hudacks. Second, the
jury found Siggard trespassed on the Hudacks’ property and that the trespass was a
substantial factor in causing harm to the Hudacks; however, the jury concluded Siggard
did not intend to harm the Hudacks. Third, the jury found Siggard was negligent, but
concluded Siggard’s negligence was not a substantial factor in causing harm to the
Hudacks. Fourth, the jury found Siggard’s grading activities did not violate a County
ordinance. Fifth, the jury found Siggard did not create a private nuisance.
Sixth, the jury found the Hudacks encroached on Siggard’s property, but they did
so with Siggard’s permission. Seventh, the jury found (a) the Hudacks created a
condition that was harmful to health; which (b) interfered with Siggard’s use or
enjoyment of his land; (c) a reasonable person would have been annoyed or disturbed by
the Hudacks’ conduct; (d) the Hudacks’ conduct was a substantial factor in causing
harm to Siggard; and (e) the seriousness of the harm to Siggard outweighed the public
benefit of the Hudacks’ conduct. Eighth, the jury concluded Marianne conspired with
Larry to injure Siggard. Ninth, the jury found the Hudacks engaged in trespass and
nuisance with malice, oppression, and fraud. For the nuisance cause of action, the jury
awarded Siggard $437,200 for economic losses and nothing for non-economic losses.
The jury awarded Siggard punitive damages in the amount of $167,500.
29
Q. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
On November 12, 2010, the Hudacks filed a motion for a judgment
notwithstanding the verdict (JNOV). The Hudacks asserted Siggard’s private nuisance
cause of action was “focused exclusively on the Hudacks’ communications with public
officials and the CEQA cause of action.” The Hudacks argued that their
communications were “absolutely privileged” due to the litigation privilege. The
Hudacks reasoned that since Siggard’s nuisance claim was “based solely on the
Hudacks’ right to access the courts[, n]o admissible evidence supports this cause of
action and it cannot stand.”
The Hudacks argued the issue was already settled when Judge Cahraman ruled
on their anti-SLAPP motion. The Hudacks argued Siggard’s nuisance claim was a
“‘back door’” method of introducing “improper evidence,” after the anti-SLAPP ruling.
Judge Holmes ruled on the Hudacks’ JNOV motion. In denying the motion, the
trial court wrote, “A preliminary ruling on an anti-SLAPP motion does not amount to an
exclusionary rule. Substantial and relevant evidence at trial proved a cause of action not
affected by the SLAPP ruling, and no law precluded its introduction and consideration
by the jury. Much more evidence was adduced showing the Hudacks’ misconduct than
just communications to public officials: among other things, there were repeated
contacts about [] Siggard with [the] Association officials and other neighbors, some 60
emails to these and other individuals, and threats made to the whole La Cresta
community shown at trial.”
30
R. MOTION FOR NEW TRIAL
On November 22, 2010, the Hudacks filed a motion for new trial. First, the
Hudacks asserted there was a “fatal inconsistency between [an] instruction and [the]
special verdict” form. The Hudacks pointed out that the private nuisance instruction
defined a nuisance as occurring if the Hudacks or Siggard interfered with one another’s
“comfortable enjoyment of life or property,” while the special verdict form asked the
jury whether Siggard’s interference created a condition that was harmful to the
Hudacks’ health. The Hudacks argued that their private nuisance cause of action “was
not premised on a contention that Siggard created a condition that was harmful to their
health,” and the jury was not instructed on the health issue, so therefore the
“inconsistency renders the verdict ‘against law’ and mandates a new trial against
Siggard.”
Second, the Hudacks’ argued “the jury was improperly allowed to second guess
the portion of the judgment in this case finding that Siggard’s grading violated [County]
Ordinance 457,” which concerned grading. The Hudacks pointed out that the first
question on the special verdict form for the nuisance per se cause of action was whether
Siggard’s grading activities violated County Ordinance 457. The jury found Siggard’s
grading did not violate the ordinance. The Hudacks argued this was problematic
because the violation of the ordinance was res judicata or law of the case, because Judge
Cahraman wrote in his ruling, “‘In March of 2006, [Siggard] obtained an agricultural
exemption f[ro]m the requirement of a grading permit, pursuant to Riverside County
Ordinance 457. Respondent County conducted no CEQA review whatsoever prior to
31
granting that exemption. . . .[”] (Italics omitted.) The Hudacks asserted Judge
Cahraman’s ruling granting the writ was “fully conclusive” on the finding that Siggard
violated County’s ordinance because “Siggard had no grading permits and did not have
a valid exemption.”
Judge Holmes ruled on the motion for new trial. In the trial court’s ruling it
wrote: “Judge Cahraman’s writ of mandate was directed to the County of Riverside
based on what he found to be its violation of the California Environmental Quality Act.
He did not find that Siggard’s grading violated County Ordinance 457, and there was
conflicting evidence presented on that point.
“Based on all the evidence presented to the jury over the weeks of trial, it could
well have heeded the [private nuisance jury instruction] and still rendered its same
verdict. Further, all counsel approved both the instruction and the special verdict form,
and no objection was made when the verdict was read out by the courtroom assistant.”
DISCUSSION
A. PRIVATE NUISANCE
1. CONTENTIONS
The Hudacks contend the trial court erred by denying their JNOV motion
because the evidence supporting Siggard’s private nuisance cause of action was the
same evidence Judge Cahraman found to be protected communications when ruling on
the anti-SLAPP motion. Additionally, under the same point heading, the Hudacks
assert “substantial evidence” does not support the private nuisance verdict because
“communicative acts” cannot form “the sole basis of liability for private nuisance” on
32
land. (Cal. Rules of Court, rule 8.204 [separate headings].) We disagree with both
contentions.
2. PROTECTED COMMUNICATIONS
We begin with the Hudacks’ assertion that the trial court erred by denying their
JNOV motion because the court “completely ignored Judge Cahraman’s prior holding
that all of the alleged communication and conduct by the Hudacks, as a matter of law,
was ‘permissible communications and conduct in pursuit of the right to petition.’” It
appears the Hudacks are raising the following argument: The court determined, in the
anti-SLAPP ruling, that the Hudacks’ communication and conduct was protected
activity; therefore, any evidence that was brought up in that anti-SLAPP motion could
not be used in the trial, because it was determined to be privileged and that ruling bars
any contradictory evidentiary ruling.
Typically we review denials of JNOV motions for substantial evidence; however,
if an issue raises purely legal questions then we apply the de novo standard of review.
(Wolf v. Walt Disney Pictures and Television (2008) 162 Cal.App.4th 1107, 1138.) The
Hudacks’ contention raises a legal issue, so we apply the de novo standard.
The Hudacks’ argument is not persuasive because it fails to take into account the
second prong of the anti-SLAPP analysis. An anti-SLAPP analysis has two prongs
(1) is the defendant’s alleged activity protected, and (2) is there a probability the
plaintiff will prevail on the claim? (Code Civ. Proc., § 425.16, subd. (b)(1).) The
Hudacks’ argument concerns only the first prong. They assert the activity is protected
and therefore the evidence cannot be used at trial. The Hudacks have forgotten the
33
second prong requiring the issue to be reconsidered for each cause of action. An anti-
SLAPP ruling is not a blanket finding that evidence must be excluded throughout trial.
As the trial court noted, an anti-SLAPP ruling is not an evidentiary ruling. However,
even if it were an evidentiary ruling, the second prong would require an analysis to be
performed for every cause of action.
For example, if the anti-SLAPP analysis in this case resulted in a finding that the
evidence was protected, but Siggard had a probability of prevailing on his defamation
cause of action, then the evidence could have been admitted to prove defamation despite
the activity being protected—a finding of protected activity under an anti-SLAPP
analysis does not mean evidence is automatically excluded. Parties must meet both
prongs of the anti-SLAPP analysis and then the court will strike “the cause of action.”
(§ 425.16, subd. (b)(1), italics added.) Evidence is not stricken under an anti-SLAPP
analysis, but even if it were, it would be for a single cause of action—not an entire
complaint or trial.
The Hudacks argue that the “e-mail evidence was insufficient as a matter of law
to survive the anti-SLAPP motion, and since Siggard did not appeal from that ruling, he
cannot use it now to support a private nuisance cause of action.” As set forth ante,
Siggard did not need to file an appeal to the anti-SLAPP motion in order to use the
evidence at trial for a cause of action that was not stricken by the anti-SLAPP ruling.
Thus, we find the Hudacks’ argument to be unpersuasive.
34
The Hudacks assert that the evidence was protected by the litigation privilege
(Civ. Code, § 47, subd. (b))5 in addition to being protected by the anti-SLAPP ruling.
The Hudacks discuss the fact that they raised objections to the evidence in the trial
court, give a record citation to closing arguments, and conclude the evidence is
privileged. The Hudacks’ argument concerning the litigation privilege is not persuasive
because it is not clear exactly which objections they believe should have been sustained.
The record citation to closing argument is to a page where no objections were raised.
Thus, it is unclear exactly what the Hudacks wish this court to analyze in regard to the
objections and the possible connection with the litigation privilege. (Cal. Rules of
Court, rule 8.204(a)(1)(C) [provide record citations].)
3. SUBSTANTIAL EVIDENCE
We now turn to the Hudacks’ contention that substantial evidence does not
support the jury’s private nuisance finding because the evidence reflects the Hudacks’
interference was due to communicative acts, not a condition on Siggard’s land.
“Substantial evidence is evidence that a rational trier of fact could find to be
reasonable, credible, and of solid value. Under the substantial evidence standard of
review, we view the evidence in the light most favorable to the judgment and accept as
true all evidence tending to support the judgment, including all facts that reasonably can
be deduced from the evidence, and must affirm the judgment if an examination of the
5 All further statutory references are to the Civil Code unless indicated.
35
entire record viewed in this light discloses substantial evidence to support the judgment.
[Citations.]” (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223.)
A nuisance is defined as “[a]nything which is injurious to health, including, but
not limited to, the illegal sale of controlled substances, or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free passage or
use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway . . . .” (§ 3479.)
Thus, a nuisance is an “interference with the private use and enjoyment of land.
[Citation.] In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff’s property; proof of interference with the plaintiff’s use and
enjoyment of that property is sufficient. [Citation.]” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937.)
The Hudacks’ communications regarding Siggard’s property were so
overwhelming and overbearing that they interfered with Siggard’s use and enjoyment of
his property. In 2001, when Siggard scraped his lot to remove weeds and ruts in the
roads, Larry complained to the Association. The Association sent Siggard a letter
cautioning him against violating the CC&Rs. Complaints were also filed with County.
Siggard was cited by County, but then the citation was dismissed.
In 2006, Siggard obtained an agricultural exemption for grading his property.
Siggard planned to plant trees, remove brush, and make the roads on the property
passable. The day Larry noticed the grading work, he told Marianne to contact the
36
Association, and Larry went to Siggard’s property to investigate, but he did not speak to
Siggard. When the Association assured the Hudacks that Siggard’s work was approved
by County, the Hudacks continued to monitor Siggard’s activities. After two and half
weeks, Larry contacted County’s Code Enforcement Unit and the Association about
Siggard’s grading activities. The Association sent Siggard a cease and desist letter, but
after Siggard spoke to the Association’s attorney and referred the attorney to the
agricultural exemption filed with the Association’s management office, the Association
did not file for an injunction against Siggard.
The Hudacks’ attorney also sent Siggard a cease and desist letter. Siggard
contacted the Hudacks’ attorney, but he had already been fired. Larry wrote a letter to
the Association; Larry presented a theory that Siggard’s agricultural exemption was a
ruse; Larry sent this letter to the Association after County had informed Larry that
Siggard was working within his agricultural exemption. Thus, despite being informed
by County that Siggard was acting within his exemption, Larry continued to complain
about Siggard’s work to an administrative body that could potentially disrupt Siggard’s
activities. Larry threatened to sue the Association if it did not join him in his fight
against Siggard.
When the Association informed Larry that it would not be joining his lawsuit
against Siggard, Larry told the Association, “The gloves are off. We’ll see you in
court.” It can be inferred from this evidence that no matter what happened with
Siggard’s property, the complaining was going to continue, and it did. On May 22,
2006, the director of County’s Building and Safety Unit sent an e-mail to Larry
37
informing him that his claims against Siggard would be investigated, but that the
investigation would require “some time to process due to very specific notification
requirements.” Larry went on to contact the agricultural commissioner, the Code
Enforcement Unit, a County Supervisor, the California Environmental Protection
Agency, and the California Department of Fish and Game. Larry also contacted the
Contractors State License Board, accusing Contractor of grading without a permit and
asking the licensing board to inquire into the status of Contractor’s contracting license.
Larry also took over 1,000 photographs of Siggard’s property. Larry wrote in a
declaration, “I took hundreds of pictures; in some cases on a daily basis.” Larry never
tried to speak to Siggard after the sale of Siggard’s property fell through in 2003.
It can be reasonably inferred from this evidence that the Hudacks became locked
into a position of complaining to every possible agency about Siggard’s activities,
despite having already been told by County and the Association that Siggard was
working within his agricultural exemption. So everything Siggard did on his property
would lead to complaints and investigations by various administrative agencies.
Siggard either had to do exactly what the Hudacks wanted done or face endless
administrative investigations, because even if Siggard was acting within County’s rules,
the Hudacks were going to continue filing complaints.
Since the Hudacks created an administrative barrier to Siggard performing work
on his property the jury could reasonably conclude that the evidence supported a finding
Larry interfered with Siggard’s use and enjoyment of his property, because everything
Siggard did on the property—even the work that was approved by County—resulted in
38
administrative complaints to the point where Siggard had few options for proceeding
with his property, as evinced by the property being lost in foreclosure.
In Siggard’s respondent’s brief, he “concedes that the judgment against the
Hudacks cannot be based on conduct that is subject to the official-proceedings or
litigation privilege created by Civil Code section 47, subd[ivision] (b).” It is unclear
exactly what documents Siggard is conceding should be excluded because the
concession is not supported by document titles, dates, or record citations. The obscurity
of Siggard’s concession is complicated by the fact that no objections were raised to
some of the evidence that could have possibly fit within the litigation privilege, thus
making it difficult for this court to “reverse engineer” Siggard’s concession by looking
though the record.
For example, at trial, when Rossell asked to move into evidence a complaint
Larry filed with the California Environmental Protection Agency against Siggard in
May 2006, McKellogg explicitly said on the record, “No objection.” As a second
example, when Rossell sought to move into evidence an e-mail Larry sent to the
director of County’s Building and Safety Department in May 2006 concerning
Siggard’s grading activity, McKellogg again said on the record, “No objection.”
If the litigation privilege is not raised, then it is waived. (G.R. v. Intelligator
(2010) 185 Cal.App.4th 606, 619.) Since the parties are not (1) directing the court to a
location in the record where the litigation privilege was raised as an objection to the
evidence and allegedly improperly overruled, and (2) providing reasons as to why the
ruling was improper, we cannot determine the applicability of the litigation privilege.
39
(Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) As a result, we are not persuaded that
the litigation privilege applies in this case, because we have not been presented with a
proper argument concerning the privilege. Since we cannot determine to what evidence
Siggard’s concession pertains, we find his concession to be fairly meaningless.
We now turn to the Hudacks’ arguments. First, the Hudacks assert substantial
evidence does not support the judgment because communicative acts cannot form the
sole basis for nuisance liability, because communications are not an interference with
land. The Hudacks’ argument is not persuasive because they fail to appreciate the
consequences of their communicative actions. The Hudacks’ communications do not
exist in a vacuum. The communications had consequences, which resulted in Siggard
being prevented from using and enjoying his property in a manner he saw fit, even when
the use was approved by County.
Second, the Hudacks argue there is no case precedent for communicative acts
providing the basis for nuisance liability. In People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1099 through 1100, our Supreme Court considered challenges to a
criminal street gang injunction that was based upon California’s civil public nuisance
statutes. One method of creating a public nuisance is to create “‘an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life or
property . . . .’” (Id. at p. 1120.) Our Supreme Court concluded people in the
community were “routinely obstruct[ed]” from using “their own property,” i.e. private
property, by the gang members “drinking, consumption of illegal drugs, loud talk, loud
music, vulgarity, profanity, brutality, fistfights and gunfire.” (Id. at p. 1120, italics
40
added.) Thus, there is case law providing that a nuisance finding can be based upon
communicative acts. Accordingly, we find the Hudacks’ argument to be unpersuasive,
because in particular situations, communication can have the consequence of preventing
a person from using and enjoying his land.6
Third, the Hudacks assert substantial evidence does not support the nuisance
judgment because “Judge Cahraman had previously held that all of the alleged
communication and conduct by the Hudacks was ‘permissible communications and
conduct in pursuit of the right to petition.’” The Hudacks cite to the portion of the
record wherein Judge Cahraman issued a ruling on the anti-SLAPP motion. As
explained ante, an anti-SLAPP ruling is not an evidentiary ruling. Thus, Judge
Cahraman’s ruling at the anti-SLAPP hearing does not explain why there was a lack of
substantial evidence at trial.
Fourth, the Hudacks assert there is a lack of substantial evidence because Siggard
testified the Hudacks did not create an unhealthful condition on his property. The
Hudacks do not cite any law to support this argument; however, we infer they are
6 Private nuisance law provides: “‘So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.’” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) Thus, we are not interpreting the Supreme Court’s rule as providing that any communication can form the basis for nuisance liability, because a plaintiff would still need to prove the element of “unreasonableness” under an objective-person standard. The Hudacks do not discuss the element of “unreasonableness,” rather, they focus on the element of “interference.” Moreover, it is important to note that we were not presented with a proper argument concerning the litigation privilege or any argument concerning the First Amendment. The Hudacks did not include Siggard’s nuisance cause of action in their anti-SLAPP motion.
41
referring to the following definition: “Anything which is injurious to health or an
obstruction to the free use of property is a nuisance. (Civ. Code, § 3479.)” (Shamsian
v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979.)
On the special verdict form, the jury was asked: “Did the Hudacks create a
condition that was harmful to health?” The jury responded, “Yes.” The jury was then
asked, “Did this condition interfere with Siggard’s use or enjoyment of his land?” The
jury responded, “Yes.”
At trial, when Siggard was being questioned by McKellogg, the following
exchange occurred:
“[McKellogg]: So as far as these what we call non-economic damages, you
didn’t see a doctor. Did you ever take any special medication for these conditions?
“[Siggard]: No, I have not.
“[McKellogg]: Ever get any prescription medication to deal with these
conditions that you’ve described?
“[Siggard]: No, I have not.
“[McKellogg]: Did the Hudacks create some kind of condition on your property
that was unhealthful to you?
“[Siggard]: You mean physical?
“[McKellogg]: Yeah. Something that was harmful to your health?
“[Siggard]: Not that I’m aware of.”
It is unclear from the questions whether McKellogg asked Siggard (1) whether
the Hudacks created a physical condition on Siggard’s property that was unhealthful to
42
Siggard, or (2) whether the Hudacks created a condition on Siggard’s property that was
unhealthful to Siggard’s physical wellbeing, as opposed to his emotional or mental
wellbeing. Since the question is unclear, Siggard’s answer, “Not that I’m aware of,” is
ambiguous. It is unclear if Siggard is saying there was not a condition on his property,
or if he is saying the condition on the property was not harmful to his physical
wellbeing.
Under the substantial evidence standard of review we must resolve all conflicts
in the evidence and draw all reasonable inferences in support of the verdict. (Hartt v.
County of Los Angeles (2011) 197 Cal.App.4th 1391, 1402.) Under this rule, we must
interpret Siggard’s ambiguous testimony as reflecting there was a condition on his
property, but it was not harmful to his physical wellbeing. This inference is supported
by the fact that prior to this “physical” line of questioning, McKellogg was questioning
Siggard about his medications and prescriptions—it makes it more reasonable that the
question and answer concerned Siggard’s health. Accordingly, we find the Hudacks’
argument to be unpersuasive.
B. ORDINANCE VIOLATION
1. PROCEDURAL HISTORY
In the Hudacks’ second amended complaint, their first cause of action concerned
an allegation of a CEQA violation, pertaining to all the defendants. In the first cause of
action, the Hudacks asserted Siggard obtained an agricultural grading exemption, but
exceeded the scope of that exemption when grading his property. The Hudacks alleged
County failed to perform a CEQA analysis of Siggard’s project. Therefore, the
43
Hudacks asked the trial court to issue a writ of mandate (1) setting aside the agricultural
exemption, (2) directing County to prepare an environmental impact report, and
(3) awarding attorneys’ fees and costs to the Hudacks. The Hudacks also requested
(1) a judgment prohibiting Siggard from applying for “discretionary land use approval
for the Property for a period of five (5) years pursuant to [County] Ordinance 457”; and
(2) a judgment requiring Siggard to restore the property to its original condition prior to
the grading.
When Judge Cahraman issued the ruling on the Hudacks writ petition, he wrote
the following in the “Introduction” section of the written ruling: “In March of 2006
[Siggard] obtained an agricultural exemption from the requirement of a grading permit,
pursuant to Riverside County Ordinance 457. Respondent County conducted no CEQA
review whatsoever prior to granting that exemption. [The Hudacks] challenge that
decision and assert that CEQA covers the decision in question.” In the “Ruling”
section, Judge Cahraman wrote: “Judgment shall be entered in favor of petitioners on
the first cause of action.” The trial court ordered County to “(1) vacate and set aside its
approval of the agricultural exemption to the permit requirements; and (2) take such
actions as may be necessary to bring the project into compliance with the California
Environmental Quality Act, sections 21000, et. seq., of the Public Resources Code.”
The ruling was issued on May 22, 2007.
The Hudacks requested their other remedies also be granted, in addition to the
writ. Judge Cahraman held a hearing on the Hudacks “additional remedies” motion.
The trial court denied, without prejudice, the Hudacks’ request to preclude Siggard from
44
obtaining land use approvals. On February 7, 2008, the trial court appointed a referee.
The trial court ordered the following factual question be resolved: “What remedial
action, if any, should [] Siggard be required to perform with regard to the changes he
made to his land? The analysis should be based on the environmental damage done and
its effect on the Hudacks, if any.”
On August 6, 2009, the Hudacks filed their fifth amended complaint. County
was not listed as a defendant in the fifth amended complaint. The first cause of action
in the fifth amended complaint was an allegation of a CEQA violation against Siggard
and the Ochoas. In the first cause of action, the Hudacks alleged judgment was entered
in their favor on this cause of action but the court “reserved jurisdiction to make further
remediation orders.”
Siggard demurred to the Hudacks fifth amended complaint arguing that CEQA
“does not specifically authorize an injunction in order for a property owner to return [a]
property to a pre-graded state.” Siggard asserted the appropriate remedy under CEQA
was for County to conduct an environmental review.
Judge Schwartz ruled on the demurrer. The trial court concluded CEQA did not
grant the court authority to issue an injunction ordering Siggard to return the property to
its pregraded condition. The trial court reviewed the referee’s report and noted that
restoration of the property was never found to be required by CEQA in that an
environmental impact report was never prepared. The court concluded it had the
authority to stop the grading, but ordering restoration would be problematic because it
would be a second project occurring on the property without an environmental impact
45
report. The court held the proper remedy would be “to remand the project back to the
lead agency to conduct the appropriate review.” The trial court sustained the demurrer
to the Hudacks’ CEQA cause of action without leave to amend.
The parties presented the trial court with a joint special verdict form. When
reviewing the verdict form, the trial court said it would place the titles of the causes of
action, from the verdict form, on a single sheet of paper to have available for ruling on
relevance objections. The trial court told the attorneys, “[I]f it turns out not to be
adequate on your cross-complaint or on the complaint, let me know with a short
submittal. I don’t care what form you use. Individually. I’m not asking you to do this
as joint, but if there’s something more in the case than is reflected here in the titles, let
me know. This will be easier for me than using the complaint and trying to figure out
what’s left in the complaint.”
On July 19, the trial court and the parties discussed the special verdict form and
the various changes proposed by the parties. The parties discussed the issue of how
Contractor was presented, as an individual or a corporate entity. The trial court
instructed the attorneys to work it out together. McKellogg said, “We’ll work on that at
lunch, Your Honor.” When the parties reconvened after the noon recess, Rossell and
Contractor’s attorney explained that McKellogg wanted “a whole set of questions aimed
directly at Ryan Monteleone,” as an individual. The trial court validated the joint
special verdict form that was originally submitted.
During closing arguments, McKellogg argued: “[D]id [] Siggard violate
Riverside County Ordinance 457 because he needed a grading permit? He didn’t get
46
one. You’ve heard excuses why he said he didn’t need one, but if you find, based on
the testimony of the other witnesses, that there was a need for a grading permit, and he
didn’t have it, and he was using this Agricultural Exception as basically a cover for not
getting the grading permit, then your answer to these Nuisance Per Se questions are
going to be ‘yes.’” McKellogg went on to argue the evidence, such as the testimony of
a code enforcement officer, asserting it showed Siggard violated County Ordinance No.
457.
On the Hudacks’ nuisance per se cause of action against Siggard, the special
verdict form read:
“12. Did Siggard’s grading activities violate Riverside County Ordinance 457?
“_____ Yes _____ No
“If your answer to Question 12 is yes, then answer Question 13. If you answered
no, go to Section D, and recommence at Question 19.”
Question 19 concerned the Hudacks’ private nuisance cause of action. The jury
marked the “no” option for Question No. 12, and therefore skipped over the other
questions concerning the nuisance per se cause of action, such as, “Did this condition
interfere with the Hudacks’ use or enjoyment of their land?”
In the Hudacks’ motion for new trial, they argued, “the jury was improperly
allowed to second guess the portion of the judgment in this case finding that Siggard’s
grading violated [County] Ordinance 457,” which concerns grading. The Hudacks
argued the violation of the ordinance was res judicata or law of the case, due to Judge
Cahraman’s writ ruling. The Hudacks asserted Judge Cahraman’s ruling granting the
47
writ was “fully conclusive” on the finding that Siggard violated County’s ordinance
because, “Siggard had no grading permits and did not have a valid exemption.”
Judge Holmes ruled on the motion for new trial: “Judge Cahraman’s writ of
mandate was directed to the County of Riverside based on what he found to be its
violation of the California Environmental Quality Act. He did not find that Siggard’s
grading violated [County] Ordinance 457, and there was conflicting evidence presented
on that point.”
2. ANALYSIS
We are now addressing the lawsuit wherein the Hudacks were suing Siggard and
Contractor. The Hudacks contend a new trial is necessary because the jury should not
have been permitted to consider the question of whether Siggard violated County
Ordinance No. 457, because that issue was settled by Judge Cahraman’s writ ruling and
therefore principles of res judicata applied to the finding. Siggard asserts the Hudacks
have waived this contention because they did not object to the special verdict form on
this basis at trial court.
We agree with Siggard that the issue was waived due to the Hudacks’ failure to
object. Since the special verdict form was prepared jointly by the trial attorneys it could
also fall within the doctrine of invited error. (Transport Ins. Co. v. TIG Ins. Co. (2012)
202 Cal.App.4th 984, 1000.) As to the waiver issue, the relevant rule is: “‘An appellate
court will not consider procedural defects or erroneous rulings where an objection could
have been but was not, raised in the court below.’ [Citation.] It is unfair to the trial
judge and to the adverse party to take advantage of an alleged error on appeal where it
48
could easily have been corrected at trial. [Citations.]” (Children’s Hosp. and Medical
Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.)
In this case, the trial court asked the attorneys to inform the court if the special
verdict form was inadequate. The trial court also listened to objections to the special
verdict form. The Hudacks did not object on the basis raised here. The issue could have
been easily resolved by removing or redacting the question from the special verdict
form. Since the Hudacks waited until after trial to raise this verdict form issue, we
deem the issue to be waived.
The Hudacks assert they did not waive this issue because they raised it after trial,
in their motion for a new trial. For the sake of thoroughness, we will address the merits
of the Hudacks’ contention. However, we must address one more procedural problem,
which is that the Hudacks have not provided any law to support to their argument. The
Hudacks use the legal terms “res judicata” and “law of the case,” so we infer those are
the legal theories on which their contention is based.
“‘Res judicata’ describes the preclusive effect of a final judgment on the merits.
Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them.” (Mycogen Corp.
v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Judge Cahraman’s ruling concerned the
cause of action for an alleged CEQA violation. The jury question pertained to a cause
of action for nuisance per se. Since the same cause of action was not being relitigated,
we conclude the Hudacks’ reliance on the doctrine of res judicata is not persuasive.
49
“The law of the case doctrine states that when, in deciding an appeal, an
appellate court ‘states in its opinion a principle or rule of law necessary to the decision,
that principle or rule becomes the law of the case and must be adhered to throughout its
subsequent progress, both in the lower court and upon subsequent appeal . . . , and this
although in its subsequent consideration this court may be clearly of the opinion that the
former decision is erroneous in that particular.’ [Citations.]” (Kowis v. Howard (1992)
3 Cal.4th 888, 892-893.) The Hudacks’ contention concerns an alleged trial court
finding, not a case or statute that was misinterpreted. Accordingly, the Hudacks’
reliance on the law of the case doctrine is not persuasive.
Although not mentioned in the Hudacks’ appellants’ opening brief, we infer they
perhaps meant to rely on the law of collateral estoppel/issue preclusion, which
“‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.]”
(Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896.) The Hudacks raise the
following reasoning in support of their argument: “Judge Cahraman necessarily found
that Siggard violated [County] Ordinance 457 because his exemption was invalid.”
In Judge Cahraman’s writ ruling, he directed County to invalidate Siggard’s
agricultural exemption, which would have the direct result of stopping Siggard’s project
from going forward. Judge Cahraman’s reason for this order was that a proper CEQA
analysis had not been performed. Judge Cahraman’s decision was not based upon a
finding that Siggard had exceeded the scope of his agricultural exemption or otherwise
violated the administrative grading permit process of County Ordinance No. 457. The
reason for invalidating the exemption was to stop the grading from taking place in order
50
to prevent the CEQA violation from continually compounding—not because the court
found a County ordinance was being violated.
We note that County Ordinance No. 457.103 amended Section 3309.1 of the
Uniform Building Code to reflect, “Unless exempted by the California Environmental
Quality Act of 1970, no application for a permit for grading shall be accepted unless
accompanied by a completed Environmental Assessment Form, and no grading permit
shall be issued thereon until all procedures under those rules including the preparation
of a final Environmental Impact Report, if required, have been completed.” (Riverside
County Ordinance No. 457.103, § 4(J)(5).)7 However, there is nothing indicating the
trial court’s decision was based on this County amendment. Rather, as set forth ante, it
appears the trial court’s decision was based on state laws (not a local ordinance), as it is
the Public Resources Code and Code of Regulations that are heavily cited in the
“Reasons” section of the trial court’s ruling. The County Ordinance is cited only to
discuss the discretionary versus ministerial nature of granting an agricultural exemption.
Since the issue of whether Siggard had violated County Ordinance No. 457 had not
been decided by Judge Cahraman’s writ ruling, we find no error in the verdict form.
C. JURY INSTRUCTION
1. PROCEDURAL HISTORY
During closing arguments, McKellogg argued Siggard created a nuisance by
damming the spring that gave water to the oak trees on the Hudacks’ property, creating
7 http://www.clerkoftheboard.co.riverside.ca.us/ords/400/457.pdf, as of October 9, 2013.
51
dust that entered the Hudacks’ property, and causing there to be noise on the Hudacks’
property.
The trial court ordered the parties to work together to create jury instructions.
The parties submitted proposed instructions. The parties and trial court discussed the
proposed instructions. During the discussion the trial court talked about California Civil
Jury Instruction No. 2021, which sets forth the elements of nuisance. The trial court
suggested different wording for one of the elements saying, “I think that should be
‘one’s conduct was a substantial factor in causing the other’s harm.’” Rossell
responded, “Sure.” The trial court also suggested changing the wording in the
instruction’s introduction. The introduction was meant to let the jury know Siggard and
the Hudacks both had private nuisance causes of action, so the instruction pertained to
both parties’ claims. The trial court said, “Let’s say it better. Let’s just say as to [the
Hudacks] and as to Siggard. Does that do it?” Rossell responded, “I believe so.” The
trial court said, “2021 is in.”
On July 19, the trial court and the parties finalized the instructions. During that
conversation, the parties and court discussed the instruction pertaining to economic
damages. (CACI No. 3903.)
California Civil Jury Instruction No. 2021, as given in this case, read: “The
Hudacks and Wayne Siggard claim that the other interfered with their use and
enjoyment of their land. To establish this claim, each must prove all of the following:
“1. That the one owned the property;
52
“2. That the other, by acting or failing to act, created a condition that was an
obstruction to the free use of property, so as to interfere with the comfortable enjoyment
of life or property;
“3. That this condition interfered with the other’s use or enjoyment of their land;
“4. That the one did not consent to the other’s conduct;
“5. That an ordinary person would be reasonably annoyed or disturbed by the
other’s conduct;
“6. That the Hudacks were, or [] Siggard was, harmed;
“7. That the one’s conduct was a substantial factor in causing the other’s harm;
and
“8. That the seriousness of the harm outweighs the public benefit of the
offender’s conduct.”
As set forth ante, the trial court also directed the parties to submit a joint special
verdict form. The discussions about the special verdict form are described ante. Of
note, the trial court told the trial attorneys when discussing the special verdict form,
“[I]f it turns out not to be adequate on your cross-complaint or on the complaint, let me
know with a short submittal. I don’t care what form you use. Individually. I’m not
asking you to do this as a joint, but if there’s something more in the case than is
reflected here in the titles, let me know. This will be easier for me than using the
complaint and trying to figure out what’s left in the complaint.”
The special verdict form for the Hudacks’ private nuisance cause of action read:
53
“19. Did Siggard, by acting or failing to act, create a condition that was harmful
to health?
“____ Yes ____ No
“If your answer to Question 19 is yes, then answer Question 20. If you answered
no, go to Section E and recommence at Question 27.” Question 27 concerned the
Hudacks’ cause of action for negligence. The jury marked the “no” option on Question
19, and therefore did not answer the remaining questions concerning the Hudacks’
private nuisance cause of action.
In the Hudacks’ motion for new trial, they asserted there was a “fatal
inconsistency between [an] instruction and [the] special verdict” form. The Hudacks
pointed out that the private nuisance instruction defined a nuisance as occurring if the
Hudacks or Siggard interfered with one another’s “comfortable enjoyment of life or
property,” while the special verdict form asked the jury whether Siggard’s interference
created a condition that was harmful to the Hudacks’ health. The Hudacks argued that
their private nuisance cause of action “was not premised on a contention that Siggard
created a condition that was harmful to their health,” and the jury was not instructed on
the health issue, so therefore the “inconsistency renders the verdict ‘against law’ and
mandates a new trial against Siggard.”
Judge Holmes ruled on the motion for new trial. In the trial court’s ruling it
wrote: “Based on all the evidence presented to the jury over the weeks of trial, it could
well have heeded CACI 2021 [the private nuisance jury instruction] and still rendered
its same verdict. Further, all counsel approved both the instruction and the special
54
verdict form, and no objection was made when the verdict was read out by the
courtroom assistant.” The trial court denied the motion for a new trial.
2. ANALYSIS
The Hudacks contend the trial court erred by denying their motion for a new trial
because the special verdict form pertaining to the nuisance cause of action asked the
jury if Siggard created a condition that was harmful to health, when (1) the jury was not
instructed about a condition pertaining to health, and (2) the Hudacks’ did not proceed
on a theory of the alleged condition being harmful to health.8
A verdict may be vacated and a new trial granted if “the verdict or other decision
is against law.” (Code Civ. Proc., § 657.) “The jury’s verdict [is] ‘against law’ only if it
[is] ‘unsupported by any substantial evidence, i.e., [if] the entire evidence [is] such as
would justify a directed verdict against the part[y] in whose favor the verdict [was]
returned.’ [Citations.]” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906,
italics added; Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 638
[“In this context, a verdict is ‘against law’ only if it was unsupported by substantial
granting of a new trial on the ground that the verdict is against law is authorized only
where there is no substantial evidence to sustain the verdict”].)
8 Siggard asserts the Hudacks forfeited this argument by not objecting during the trial and by participating in the drafting of the jury instructions and special verdict form. We choose to address the merits of the Hudacks’ argument.
55
The Hudacks do not present this court with a substantial evidence argument.
Rather, they argue about how the language of the jury instruction does not match the
language of the special verdict form. The Hudacks assert that since the language does
not match the “inconsistency renders the verdict ‘against law’ and mandates a new
trial.”
We must follow the definition of “against law” set forth by our Supreme Court.
(Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450,
456.) As set forth ante, our Supreme Court has set forth the rule that a verdict is against
the law “only if it [is] ‘unsupported by any substantial evidence” (Sanchez-Corea v.
Bank of America, supra, 38 Cal.3d at p. 906, italics added.) As a result, we would need
to be presented with a substantial evidence argument in order to properly consider this
issue. Since a substantial evidence argument was not presented, we find the Hudacks’
argument to be unpersuasive.
D. “OTHER REMEDIES” MOTION
1. PROCEDURAL HISTORY
The Hudacks filed their original complaint, initiating the instant case, on May 25,
2006. County was among the named defendants. The causes of action included a
CEQA violation. The CEQA cause of action included allegations that all the defendants
“should have required an Environmental Impact Report (EIR)” for the grading work
done on Siggard’s property. The Hudacks requested a “[w]rit of mandamus to require
the defendants to recognize that the defendants [sic] grading project is subject to CEQA
56
and to require said defendants to comply with the CEQA act [sic] and prepare an
Environmental Impact Report.”
Judge Cahraman granted the writ. The writ directed County to “vacate and set
aside its approval of the agricultural exemption to the permit requirements; and (2) take
such action as may be necessary to bring the project into compliance with [CEQA],
sections 21000, et seq., of the Public Resources Code.”
The Hudacks filed a motion requesting a hearing on the additional remedies
requested in their second amended complaint concerning the alleged CEQA violation.
County was named a defendant in the second amended complaint. In addition to the
writ, the Hudacks requested Siggard (1) be required to restore his property to the
condition it was in prior to his grading activity; and (2) “be prohibited from seeking any
discretionary land use approval for the Property for a period of five (5) years.”
County’s return to the writ of mandate reflected (1) County invalidated Siggard’s
agricultural grading exemption; and (2) an additional return to the writ would be filed if
Siggard applied for another grading permit or agricultural exemption and County’s
building department approved the permit or exemption. Judge Cahraman held a hearing
on the Hudacks “additional remedies” motion.
The trial court denied, without prejudice, the Hudacks’ request to preclude
Siggard from obtaining land use approvals. On February 7, 2008, the trial court
appointed a referee. The trial court ordered the following factual question be resolved:
“What remedial action, if any, should [] Siggard be required to perform with regard to
the changes he made to his land? The analysis should be based on the environmental
57
damage done and its effect on the Hudacks, if any.” The trial court ordered Siggard and
the Hudacks equally share the cost of the referee.
In September 2009, Siggard demurred to the Hudacks’ fifth amended complaint.
County was not named as a defendant in the fifth amended complaint. In the demurrer,
it was argued that CEQA “does not specifically authorize an injunction in order for a
property owner to return [a] property to a pre-graded state.” In other words, the remedy
the Hudacks were seeking did not comport with the CEQA cause of action. Siggard
asserted the appropriate action under CEQA was for County to conduct an
environmental review.
Judge Schwartz ruled on the demurrer. County was not present at the demurrer
hearing—County was no longer a defendant in the case. The trial court concluded
CEQA did not grant the court authority to issue an injunction ordering Siggard to return
the property to its pregraded condition. The trial court reviewed the referee’s report and
noted that restoration of the property was never found to be required by CEQA in that
an environmental impact report was never prepared. The court concluded it had the
authority to stop the grading, but ordering restoration would be problematic because it
would be a second project occurring on the property without an environmental impact
report. The court held the proper remedy would be “to remand the project back to the
lead agency to conduct the appropriate review.” The trial court sustained the demurrer
to the Hudacks’ CEQA cause of action without leave to amend. The trial court also
vacated the scheduled hearing to consider the referee’s findings.
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2. ANALYSIS
(a) Contentions
We now turn to the demurrer proceeding between the Hudacks and Siggard.
Under a single heading, the Hudacks assert the following: “Judge Schwartz’s ruling
must be reversed to the extent it held that County fully complied with the writ of
mandate solely by vacating the agricultural exemption. That ruling must also be
reversed to the extent that it rejected the referee’s recommendations in total and
dismissed all further CEQA proceedings. County should be ordered to prepare an EIR
and assess the impact of the referee’s recommendations.” In a footnote, the Hudacks
contend “[o]rdering an EIR here will not be a hollow gesture. The environmental
effects of Siggard’s improper grading have never been fully assessed. In addition, the
trial court at the end of the case rejected the Hudacks’ claim for substantial attorneys’
fees incurred in the CEQA proceedings on the theory that no significant public benefit
was achieved. [Citation.] Such a public benefit could well have been achieved if the
County had been required to bring the project into compliance with CEQA.” (Cal.
Rules of Court, rule 8.204(a)(1)(B) [separate headings].)
The County asserts the attorneys’ fees ruling may be appealable, but Judge
Schwartz’s ruling cannot be included in the Hudacks’ appeal because “lack of notice of
any contempt proceedings, the referee appointment was directed at enforcement as to
parties other than the County, lack of an appealable written order, lack of compliance
with notice of appeal requirements, or untimeliness.”
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(b) Writ of Mandate
We address the Hudacks’ contentions in turn. First, the Hudacks’ assert, “Judge
Schwartz’s ruling must be reversed to the extent it held that the County fully complied
with the writ of mandate solely by vacating the agricultural exemption.” Judge
Schwartz ruled on a demurrer to a complaint in which the County was not a named as a
defendant. The County was not present at the demurrer hearing. In no manner could
Judge Schwartz’s ruling be interpreted as ruling on a writ of mandate involving the
County, because (1) Judge Schwartz said at the hearing, “The matter is on calendar this
morning for a demurrer to the fifth amended complaint”; and (2) the County was not at
the hearing. (Redevelopment Agency v. Tobriner (1989) 215 Cal.App.3d 1087, 1095
[discussing due process and parties being present at hearings].)
At the demurrer hearing, Judge Schwartz vacated the scheduled hearing to
consider the referee’s findings. The referee’s report grew out of the Hudacks’ motion
for “additional remedies.” It appears only Siggard and the Hudacks participated in the
referee’s hearing. Thus, it does not appear Judge Schwartz’s order vacating the
scheduled hearing could be construed as holding the County fully complied with the
writ of mandate, because (1) it did not involve a writ of mandate, and (2) it did not
involve the County. Accordingly, we reject the Hudacks’ premise that Judge
Schwartz’s ruling could be construed as holding that the County fully complied with the
writ of mandate.
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(c) Demurrer
Second, we address the Hudacks’ contention that Judge Schwartz’s “ruling must
also be reversed to the extent that it rejected the referee’s recommendations in total and
dismissed all further CEQA proceedings.” Judge Schwartz sustained Siggard’s
demurrer to the Hudacks’ CEQA cause of action without leave to amend. Notice of the
ruling on the demurrer was filed on October 30, 2009. To the extent the Hudacks’
wanted to appeal Judge Schwartz’s ruling sustaining the demurrer without leave to
amend, they needed to obtain a judgment of dismissal pertaining to the order sustaining
the demurrer and appeal from that judgment. (Singhania v. Uttarwar (2006) 136
Cal.App.4th 416, 425.) In other words, a judgment of dismissal is needed.
It appears from the record that a judgment of dismissal was not entered. The
only documents reflecting the demurrer ruling are the (1) reporter’s transcript, and
(2) register of actions. The Hudacks do cite to a location in the record where judgment
was entered pertaining to the demurrer. The demurrer is not mentioned in the final
judgment following the jury trial. Moreover, contrary to the point the Hudacks are
attempting to assert, i.e. that there was an error concerning the CEQA claim, the final
judgment following the jury trial reflects the Hudacks “prevailed on the first cause of
action in their complaint,” which is the CEQA cause of action. The demurrer ruling is
not included in the Hudacks’ notice of appeal.
Since (1) there does not appear to be a judgment of dismissal pertaining to the
demurrer, and (2) the judgment following the jury trial reflects the Hudacks prevailed
on their CEQA cause of action, we lack an appealable judgment in the record pertaining
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to the demurrer. (See Shepardson v. McLellan (1963) 59 Cal.2d 83, 87-88 [“No
mention is made in the judgment entered on the jury verdict of the order sustaining the
demurrer. Thus it was incomplete. Had it contained a judgment of dismissal in
reference to the order sustaining the demurrer then it would have been reviewable on an
appeal from that judgment”].)
The Hudacks describe the ruling at the demurrer hearing as an interlocutory order
from which they could not have appealed until the final judgment following the jury’s
verdict. The Hudacks are correct that an order sustaining a demurrer is an interlocutory
order. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780 [Fourth Dist., Div. Two].)
However, the Hudacks are skipping over the step that a judgment of dismissal is needed
in order to pursue issues with the demurrer on appeal. As explained ante, there is not a
judgment of dismissal in the record, and the judgment following the jury’s verdict
reflects the Hudacks prevailed on the CEQA cause of action—the demurrer is not
mentioned. Therefore, we do not have a judgment pertaining to the demurrer—the
judgment is incomplete. (See Shepardson v. McLellan, supra, 59 Cal.2d at pp. 87-88.)
For the sake of addressing the Hudacks’ contention, we will deem the final
judgment following the jury verdict as reflecting that the demurrer to the first cause of
action was sustained without leave to amend, and thus the first cause of action was
dismissed, although the Hudacks did prevail on the writ of mandate pertaining to the
first cause of action, prior to the sustaining of the demurrer. Accordingly, we address
the Hudacks’ assertion that Judge Schwartz’s “ruling must also be reversed to the extent
62
that it rejected the referee’s recommendations in total and dismissed all further CEQA
proceedings.”
Judge Schwartz vacated a hearing concerning the referee’s report because he
sustained Siggard’s demurrer to the first cause of action. The only parties that
participated in the referee’s hearing were Siggard and the Hudacks. Thus, procedurally,
there was nothing to consider in regard to the referee’s report because the cause of
action, as between those two parties had ended. Judge Schwartz did not rule on the
merits of the referee’s report, he vacated a scheduled hearing date.
As to dismissing the CEQA cause of action, the Hudacks failed to name the
County as a party in the fifth amended complaint. The only parties named as defendants
in the CEQA cause of action were Siggard and the Ochoas. Judge Schwartz stated in
his ruling that the proper remedy in the CEQA cause of action would be “to remand the
project back to the lead agency to conduct the appropriate review.” The Hudacks also
prevailed against the County in their writ of mandate on the CEQA cause of action.
Thus, Judge Schwartz did not dismiss all further CEQA proceedings; rather, it was the
Hudacks who chose not to name the County as a defendant in the CEQA cause of action
despite having prevailed against the County in a writ petition. In sum, we are not
persuaded the trial court erred, because it was the Hudacks’ choice to not name the
County as a defendant in the CEQA cause of action.
(d) Attorneys’ Fees
Third, the Hudacks contend “the trial court at the end of the case rejected the
Hudacks’ claim for substantial attorneys’ fees incurred in the CEQA proceedings on the
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theory that no significant public benefit was achieved. [Citation.] Such a public benefit
could well have been achieved if the County had been required to bring the project into
compliance with CEQA.”
The Hudacks raise the foregoing contention in a footnote. There are no legal
citations included in the footnote. The Hudacks sought attorneys’ fees in the trial court
pursuant to Code of Civil Procedure section 1021.5. The person seeking an award of
attorneys’ fees bears the burden “to establish each prerequisite to an award of attorney
fees under [Code of Civil Procedure] section 1021.5. [Citation.]” (Ebbetts Pass Forest
Watch v. California Dept. of Forestry and Fire Protection (2010) 187 Cal.App.4th 376,
381.)
This court is not inclined to act as cocounsel for the Hudacks’ appellate attorney,
and furnish meaningful legal arguments concerning how the trial court’s ruling on the
attorneys’ fees motion may have constituted error. (Doe v. Lincoln Unified School Dist.
(2010) 188 Cal.App.4th 758, 767.) The failure to provide a meaningful legal argument
will forfeit the issue on appeal. (Los Angeles Unified School Dist. v. Casasola (2010)
187 Cal.App.4th 189, 212.) Since the Hudacks do not provide legal citations or
meaningful analysis to support the attorneys’ fees contention, we deem the issue to be
forfeited.
III.
THE HUDACKS AND THE ASSOCIATION
In this section of the opinion, we address the issues pertaining to the Hudacks
and the Association.
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FACTUAL AND PROCEDURAL HISTORY
In 2001, Larry and two other homeowners filed complaints with the Association
against Siggard. Larry complained Siggard was grading without a permit, building
residential pads, creating roads, and affecting a stream. Complaints were also filed with
the County. The Association sent Siggard a letter “requesting he cease and desist from
performing all work in violation of the Declaration of Restrictions for La Cresta.”
Siggard replied to the letter “asserting he had made no improvements to the lot.” In
August 2001, the Association sent Siggard a letter reflecting that it concluded he had
not committed any violations because he was “not grading in preparation to build a
structure.” In that letter, the Association cautioned Siggard that he could potentially
violate the CC&Rs concerning drainage if he performed erosion control work.
In 2003, Siggard applied to the Association for approval to construct a bridge,
entry gate, and wall, and to grade the property. The Association denied the request to
build a gate and wall, but approved the requests for the bridge and grading “on the
condition that the property owner obtain any County permits as required.”
In February 2006, Siggard sent the Association a letter reflecting “he anticipated
receiving a County permit shortly on plans that were substantially the same as those
approved on March 15, 2003.” In February 2006, the Association granted Siggard an
extension on the bridge and grading plans, thus permitting him to grade his property and
construct a bridge, but again with the condition that Siggard “obtain any County permits
that are required.” In March 2006, Siggard obtained his agricultural exemption. On
65
approximately March 25, Siggard submitted his agricultural permit exemption and maps
of his grading plans to the Association.
On April 25, 2006, Contractor began grading Siggard’s property. Siggard told
Contractor to make the roads “accessible,” ideally under a 15 percent hill grade.
Contractor used a bulldozer to perform the grading work. On approximately May 1,
2006, Larry saw “a really steep cut along [his] property line.” Larry instructed
Marianne to contact the Chairperson of the Association’s Architectural Committee to
determine if Siggard had permits and permission to be performing grading work. The
Chairperson of the Architectural Committee assured the Hudacks that Siggard had
permits and the Committee’s approval to perform the grading work.
On May 17, the water in Bear Creek stopped flowing. At that point, the Hudacks
questioned the information given to them by the Chairperson. Larry contacted County’s
Code Enforcement Unit to determine if Siggard had grading permits. Larry discovered
no grading permits had been issued to Siggard. Larry contacted the president of the
Board and asked him to look at Siggard’s property because Larry believed Siggard was
violating the bylaws by damming Bear Creek.
On May 17, the Board’s president looked at Siggard’s property from the property
line Siggard shared with the Hudacks. Larry complained that (1) the grading was
moving rocks and dirt on to the Hudacks’ property, (2) Bear Creek had been disturbed,
and (3) a spring that fed oak trees on the Hudacks’ property had been rerouted. It
appeared to the Board president that “there was debris” on the Hudacks’ property and
there had been “some disruption” to Bear Creek. The Board president could not
66
ascertain if the spring had been rerouted. The Board president said “he would see to it
that a cease and desist [letter] would be issued” to Siggard.
The Association’s attorneys sent a letter to Siggard on May 18. The letter asked
Siggard to cease and desist from grading his property because Siggard did not have a
grading permit. The letter warned that the Association could file legal action, such as
an injunction, against Siggard if he did not stop grading his property. In response to the
letter, Siggard called the Board’s president, but he would not take Siggard’s call. Thus,
Siggard sent a letter to the Association’s attorney. Siggard wrote that the Association’s
facts were incorrect, but even if they were correct, the Association failed to state facts
sufficient to support a cause of action. In a telephone conversation with the
Association’s attorney, Siggard referred the attorney to the agricultural grading permit
he filed with the Association’s management office.
On May 20, 2006, Larry wrote a letter to the Board’s president. In the letter,
Larry accused Siggard of grading “directly into Bear Creek.” Larry theorized that
Siggard was using “an agricultural exemption as a ruse or cover story to accomplish
land clearing and massive earth movement that would enable him to more favorably
present and sell his 10 acre parcel.” Larry noted that “Siggard had an Agricultural
Exemption and [the County could] not shut him down,” but Larry also concluded
“Siggard had No PERMITS.”
In the letter, Larry faulted the Association for approving Siggard’s grading plans
without evidence Siggard had “appropriate county permits.” Larry asserted Siggard’s
“grading caused a material and substantial loss of property value for [the Hudacks’]
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adjoining parcels.” Larry believed (1) the oak trees on his property would die due to a
lack of water from the spring; (2) mud would move onto his property when it rained
from the soft dirt piled “within inches” of the Hudacks’ property; and (3) the Hudacks’
property would flood when it rained due to the damming of Bear Creek. Larry wrote
the Association “must consider that [it] will either be a co-defendant or a plaintiff in this
case . . . there is no middle ground.”
The Board concluded that they would be named in the lawsuit “one way or
another,” so it decided not to take any particular action since the dispute concerned two
property owners within the Association. The Association did not file for an injunction.
All of Siggard’s significant grading work was completed in May. The Association
believed it satisfied any obligations it had in the situation when it sent Siggard the cease
and desist letter. When the Board informed Larry that it would not be joining him as a
plaintiff against Siggard, Larry replied, “The gloves are off. We’ll see you in court.”
The Association was not named as a defendant in the Hudacks’ original
complaint; however, the Association was named as a defendant in the Hudacks’ second
amended complaint. The Hudacks sued the Association for (1) violating CEQA;
(2) breach of fiduciary duty; (3) breach of contract by failing to enforce the CC&Rs;
and (4) negligence by failing to enforce the CC&Rs.
The Hudacks’ claims rested on the “Accelerated Enforcement” section of the
Association’s Policies and Procedures. The “Accelerated Enforcement” section
provides: “Some violations are of such a character that the routine enforcement
procedure is inadequate to protect the Association and property owners because of time
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delays. In these cases a cease and desist injunction will be sought immediately. [¶]
Building or erecting any structure or doing any grading without prior Architectural
Committee approval as provided for in Section II of the CC&Rs, is automatically
considered of this character.”
The Association demurred to the Hudacks’ second amended complaint. As to
the CEQA cause of action, the Association asserted CEQA did not apply to private
parties such as a homeowners’ association. In regard to the contract claims, the
Association asserted the demurrer should be sustained because the Hudacks failed to
cite a provision in the CC&Rs that required the Association to seek an injunction
against a homeowner. The Association asserted the “Accelerated Enforcement” section,
relied upon by the Hudacks, and was part of the Association’s “Policies and
Procedures”— not part of the CC&Rs. Therefore, the Association reasoned there could
not have been a breach of the CC&Rs. Judge Cahraman sustained the demurrer,
without leave to amend, as to the CEQA cause of action and the breach of contract
cause of action.
On October 24, 2008, the Hudacks filed their fourth amended complaint. The
Hudacks sued the Association for (1) negligence, for not inquiring into the “true facts
and circumstances surrounding [Siggard’s] permits and authorizations”; (2) negligent
misrepresentation, in that the Association told the Hudacks that Siggard had obtained
permits for grading his property; (3) fraud and deceit, in that the Association told the
Hudacks Siggard had obtained permits for grading his property; and (4) breach of
fiduciary duty by (a) authorizing Siggard’s grading, (b) not enforcing the CC&Rs,
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(c) spending Association funds on horse trails, (d) entering into easement agreements,
(e) levying and collecting unreasonable assessments, (f) failing to take legal action
against seven other property owners in La Cresta, (g) spending Association funds on an
entrance gate; (h) preparing and distributing financial statements that were false and
misleading; and (i) claiming that the Architectural Committee’s meeting minutes were
private documents.
Additionally, in the fourth amended complaint, the Hudacks requested
(1) declaratory relief, specifically that the Association’s governing documents be
declared enforceable as interpreted by the Hudacks; (2) injunctive relief, specifically
that the Association be required to enforce the Association’s governing documents
pertaining to Siggard’s property, the entry gate, the horse trails, and the spending of
Association funds; and (3) the cancellation of written instruments, specifically the
cancellation of easements granted for the purposes of pedestrian, bicycle, and equestrian
trails in La Cresta.
The Association moved for summary adjudication on the Hudacks’ claims for
(1) declaratory relief, (2) injunctive relief, (3) cancellation of written instruments, and
(4) breach of fiduciary duty. On September 25, 2009, Judge Schwartz granted the
Association’s motion for summary adjudication as to all four claims.
A month earlier, on August 6, 2009, the Hudacks filed their fifth amended
complaint. The fifth amended complaint included the same causes of action against the
Association for (1) breach of fiduciary duty, (2) negligent misrepresentation, (3) fraud
and deceit, (4) declaratory relief, (5) injunctive relief, and (6) cancellation of written
70
instruments. Thus, when the court issued its ruling, it pertained to the fifth amended
complaint, which was operative at the time of the hearing on the motion.
The jury found (1) the Association was not negligent; (2) the Association did not
make a false representation of important fact to the Hudacks; (3) the Association did not
intentionally fail to disclose an important fact that the Hudacks were unaware of and
could not reasonably have discovered; and (4) the Association did not engage in the
alleged conduct with malice, oppression, or fraud.
The Association moved for an award of attorneys’ fees and costs. The
Association’s motion was based upon section 1354, which permits the prevailing party
to collect attorneys’ fees and costs in an action to enforce the governing documents of a
homeowners’ association. (§§ 1351, subd. (a), 1354.) The trial court awarded the
Association attorneys’ fees. The record is unclear, but it appears the fee award was
approximately $600,000.
DISCUSSION
A. BREACH OF CONTRACT
1. PROCEDURAL HISTORY
In the Hudacks’ second amended complaint they cited Section IV(j) of the
CC&Rs, which reflects, “Natural surface drainage shall be maintained and no
obstruction diversion or confining of the existing channels through which surface water
naturally flows upon and across the lot in time of storm shall be made so as to cause
damage to other properties.” The Hudacks asserted Siggard breached this section of the
CC&Rs by grading his property.
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The Hudacks alleged the Association “materially breached the Contract by [(1)]
failing and refusing to utilize its power and authority to take reasonable action to
prevent Defendants from grading”; (2) not enforcing the CC&Rs; (3) not enforcing the
“Accelerated Enforcement” section of the Association’s “Policies and Procedures”; and
(4) not acting in good faith. The “Contract” was alleged to consist of “the CC&Rs, By-
Laws and Policies and Procedures” of the Association.
In its demurrer, the Association argued, “The Second Amended Complaint fails
. . . to cite to any provision in the CC&Rs that requires the Association to file a lawsuit
to enjoin a homeowner’s alleged wrongful conduct.” The Association asserted it had no
duty under the CC&Rs to sue Siggard. The register of actions reflects the trial court
sustained the Association’s demurrer without leave to amend as to the CEQA and
breach of contract causes of action. The minute order in the register of actions does not
include reasons for the ruling. The reporter’s transcript does not include a transcript for
February 21, 2007—the day the court ruled on the demurrer to the second amended
complaint.
However, the reporter’s transcript does include a record of the trial court’s ruling
on the Association’s demurrer to the Hudacks’ First Amended Complaint. When
discussing the Hudacks’ First Amended Complaint, the trial court said, “I can’t find a
covenant, a promise to do anything in particular to—to enforce the CC&Rs. I looked. I
looked at Paragraph 12 that you asked me to read in your paperwork, sir, and I read it.
I’m just not finding a covenant, a promise anywhere in that document that ‘we will do.’
Sure we have the power to do X, Y, and Z, but a promise that we must.”
72
Notice of the ruling on the demurrer to the Second Amended Complaint was
filed on February 27, 2007. It does not appear a judgment of dismissal was entered on
the demurrer. The demurrer is not mentioned in the judgment following the jury trial.
The demurrer is not included in the Hudacks’ notice of appeal. For the sake of
addressing the Hudacks’ appellate contentions, we will deem the judgment after the jury
verdict as including a judgment of dismissal for the demurrer to the second amended
complaint.
2. ANALYSIS
The Hudacks contend the trial court erred by sustaining the Association’s
demurrer to the Hudacks’ breach of contract cause of action.
“‘“A demurrer tests the legal sufficiency of the complaint . . . .” [Citations.] On
appeal from a dismissal after an order sustaining a demurrer, we review the order de
novo, exercising our independent judgment about whether the complaint states a cause
of action as a matter of law. [Citations.] We give the complaint a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.] We
deem to be true all material facts properly pled. [Citation.] We must also accept as true
those facts that may be implied or inferred from those expressly alleged. [Citation.] If
no liability exists as a matter of law, we must affirm that part of the judgment sustaining
the demurrer. [Citation.]’” (Balikov v. Southern California Gas Co. (2001) 94
Cal.App.4th 816, 819.)
“A cause of action for breach of contract requires proof of the following
elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for
73
nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the
breach. [Citation.]” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226,
1239.) “A contract is an agreement to do or not to do a certain thing.” (§ 1549.) “In a
bilateral contract, the promisor and promisee must exchange promises representing
binding legal obligations to render the contract enforceable.” (Larwin-Southern
California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.3d 626, 637.)
In the Hudacks’ second amended complaint, they allege CC&Rs, Bylaws, and
Policies and Procedures constitute a contract because they were “promulgated to
establish a general plan for the protection, maintenance, development and improvement
of La Cresta association and all the property owners owning separate interests therein,
including Hudack and Siggard.”
CC&Rs are equitable servitudes, not contracts. (§ 1354, subd. (a); see also Treo
@ Kettner Homeowners Ass’n v. Superior Court (2008) 166 Cal.App.4th 1055, 1066
[CC&Rs have been construed as contracts to provide a means for analysis, but they are
actually equitable servitudes]; compare Pinnacle Museum Tower Assn. v. Pinnacle
and explaining how an arbitration clause in CC&Rs could be considered to be a promise
and agreement].)
A lawsuit can be based upon enforcing an association’s “governing documents.”
(§ 1354, subd. (c).) “‘Governing documents’ means the declaration and any other
documents, such as bylaws, operating rules of the association, articles of incorporation,
or articles of association, which govern the operation of the common interest
74
development or association.” (§ 1351, subd. (j).) A “declaration” is a legal description
of the common interest development, and a statement that the common interest
development is a planned development or residential association. (§ 1353.) It is section
1354 that permits enforcement of these documents. (Villa De Las Palmas Homeowners
Assn. v. Terifaj (2004) 33 Cal.4th 73, 87-88.)
The Hudacks have not explained how these documents are enforceable as
contracts. Perhaps a better cause of action would have been breach of an equitable
servitude, promissory estoppel, or enforcement of the governing documents. It is
unclear how the Association’s policies and procedures could be transformed into a
contract based upon the allegations in the second amended complaint.
Nevertheless, if the policies and procedures could be construed as a contract, the
demurrer was still properly sustained. The policies and procedures section provides that
“a cease and desist injunction will be sought immediately” if “any grading [is done]
without prior Architectural Committee approval.” Siggard had approval from the
Architectural Committee. The Hudacks’ second amended complaint reflects, “Hudack
immediately placed a telephone call to Linda Bertorello, Chairperson of the
[Association’s] Architectural Committee, and asked whether or not Siggard had permits
for his grading and clearing work. Mrs. Bertorello told Hudack that Siggard’s grading
had been approved by the [Association’s] Architectural Committee, and that Siggard
had the necessary County permits.”
Given the allegations in the second amended complaint, there was no breach of
contract, because the Association would have only been required to immediately seek
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an injunction if Siggard lacked approval from the Architectural Committee. As the
Hudacks concede in the complaint, Siggard had the necessary approval. As a result,
there could not have been a breach on the part of the Association.
B. BREACH OF FIDUCIARY DUTY
1. PROCEDURAL HISTORY
The Hudacks’ fourth amended complaint alleged the Association breached its
fiduciary duty by (a) authorizing Siggard’s grading, (b) not enforcing the CC&Rs,
(c) spending Association funds on horse trails, (d) entering into easement agreements,
(e) levying and collecting unreasonable assessments, (f) failing to take legal action
against seven other property owners in La Cresta, (g) spending Association funds on an
entrance gate; (h) preparing and distributing financial statements that were false and
misleading; and (i) claiming that the Architectural Committee’s meeting minutes were
private documents.
Judge Schwartz granted the Association’s motion for summary adjudication as to
all four claims. At the hearing, the trial court noted more than one dispute was “often
argued within a single cause of action.” The court commented that “summary
adjudication did not necessarily apply to all [of the] issues within each cause of action,
which complicated it to some degree. But the Court does have discretion to grant
summary adjudication for the entire claim, or a portion of the claim, if it think[s] it’s
appropriate.”
In regard to the fiduciary duty cause of action, and specifically the failure to sue
Siggard, the trial court stated that the Hudacks had the burden to show the Association’s
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Board “acted in bad faith, and not in a matter consistent with the interest of the
Association as whole.” The trial court concluded the Hudacks needed to show the
Association had an ongoing duty to monitor Siggard’s activities, in order for the breach
to have occurred as the Hudacks alleged. The trial court concluded the Hudacks failed
to show bad faith on the part of the Association. The trial court commented, “The
Homeowners Association had discretion as to how it was going to enforce the CC&Rs.
And its decision to attempt a cease and desist letter first is not evidence of any sort of
bad faith . . . .”
In regard to the horse trail portion of the cause of action, the trial court stated that
it is undisputed that the CC&Rs and bylaws do not expressly authorize the Association
to establish horse trails, but there is also nothing prohibiting such activity. The trial
court concluded the maintenance of horse trails was “consistent with the general
purposes of the Homeowners Association,” and again emphasized that there was
nothing prohibiting such activity.
2. ANALYSIS
The Hudacks contend the trial court erred by granting the Association’s motion
for summary adjudication on their breach of fiduciary duty cause of action.
Specifically, the Hudacks contend the trial court erred by interpreting the CC&Rs and
governing documents, because only a trier of fact should interpret the documents, since
there are conflicting interpretations. In the Hudacks’ appellants’ opening brief, they
write, “At the very least, a jury should have been allowed to decide whether the
requirement of seeking a cease and desist ‘injunction’ could be satisfied by merely
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writing a letter, contrary to the plain meaning of the policy.” Since the Hudacks focus
on the injunction portion of the cause of action, we will focus on that portion as well.
“A trial court’s order granting a motion for summary adjudication is reviewed de
novo. [Citation.]” (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463,
1471.) Summary adjudication must be denied if there is a triable issue of material fact.
(Everett v. Superior Court (2002) 104 Cal.App.4th 388, 392.)
Summary adjudication was properly granted as to the Siggard “injunction issue”
because in the fifth amended complaint, the Hudacks again alleged the Association
approved Siggard’s grading activity. The Hudacks modified the allegation to reflect
that the Association abused its discretion in approving Siggard’s application, but
nonetheless alleged the planned grading was approved. As set forth ante, the policies
and procedures could be interpreted as requiring the Association to seek an injunction
when “grading [is done] without prior Architectural Committee approval.” Siggard had
the Committee’s approval as alleged in the fifth amended complaint. As a result, there
was not a material issue of fact and summary adjudication was properly granted,
because the Association was not obliged to seek an injunction even under the Hudacks’
interpretation of the policy.
To the extent the Hudacks are focusing their arguments solely on the moments
after the Hudacks told the Association Siggard did not have the appropriate permits for
his grading work, we find that argument to be unpersuasive as well. In the Hudacks’
fifth amended complaint they alleged the following: “[A] member of the . . . Board . . .
informed Hudack that the [Association’s] legal counsel, Karen Kannen, had advised the
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[Board] that once the Architectural Committee has granted approval for a project, such
approval may not be withdrawn.” Thus, it appears from the pleading that the
Architectural Committee never rescinded its approval of Siggard’s project. As a result,
the condition upon which the Hudacks rely never came to pass, i.e., Siggard’s 2006
grading was done with prior Architectural Committee approval.
C. EVIDENTIARY RULING
1. PROCEDURAL HISTORY
At the hearing on the Association’s motion for summary adjudication, Judge
Schwartz said the court’s tentative ruling was to “grant the motion for summary
adjudication as to the tenth cause of action for declaratory relief; as to the seventh cause
of action for breach of fiduciary duty; as to the eleventh cause of action for injunctive
relief; and as to the twelfth cause of action for cancellation of written instruments in
connection with the following two disputes: One, whether the Association breached a
fiduciary duty, or otherwise breached the CC&Rs, in connection with [] Siggard’s
grading activities, and whether the Homeowners Association breached a fiduciary duty,
and/or violated the governing documents when failing to file an immediate civil action
for injunctive relief upon learning that [] Siggard had not obtained the permits for
grading as required by [the] approval; two, whether the Association had authority, under
the CC&Rs, to establish and maintain interior horse trails in entering into agreements
with landowners for easements for the purpose of horse trails without amending the
CC&Rs to authorize the horse trails in the first place.”
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At the end of the hearing, the trial court said, “So the Court’s indicated will be
the order of the Court, and summary adjudication [is] granted on the terms that the
Court has indicated previously.” The minute order from the hearing reflects, “Summary
adjudication is granted as [to the Association.] Summary adjudication is as to the 7th,
10th, 11th and 12th cause[s] of action.”
In a proposed written order, the Association wrote that it prevailed on the entire
breach of fiduciary duty cause of action. The Hudacks objected to the proposed order.
The Hudacks asserted only two portions of the cause action were summarily
adjudicated—the portion concerning not seeking an injunction against Siggard, and the
portion concerning maintaining horse trails. The Hudacks argued that the other portions
of the fiduciary duty cause of action remained viable. The trial court rejected both
parties’ proposed orders and “indicate[d] the order is exactly what is stated within the
transcript regarding this order.”
Judge Holmes presided over the motions in limine. The Association moved in
limine to “exclude evidence on previously summarily adjudicated issues.” Judge
Holmes summarized Judge Schwartz’s reasoning concerning bad faith and how nothing
prohibited the Association from maintaining the horse trails. Judge Holmes interpreted
Judge Schwartz’s order as concluding “no fiduciary duty was owed [to] association
member[s] by the board.” Judge Holmes concluded summary adjudication was granted
as to the breach of fiduciary duty “cause of action.” Judge Holmes granted the
Association’s motion in limine, saying, “So, I’ll grant the motion. And I’ve made—I’ve
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shortened this on a Post-It to say horse trails and gate actions and not suing Defendant
Siggard are already adjudicated.”
2. ANALYSIS
The Hudacks contend Judge Holmes erred by misinterpreting Judge Schwartz’s
ruling. The Hudacks assert Judge Holmes incorrectly concluded Judge Schwartz
granted summary adjudication as to the entire breach of fiduciary duty cause of action,
when the ruling only pertained to suing Siggard and horse trails. The Hudacks note
“there were at least 15 other issues raised by the breach of fiduciary duty cause of
action.”
The Hudacks’ argument is not persuasive because Judge Holmes stated expressly
on the record that Judge Schwartz’s summary adjudication ruling was limited to “horse
trails[, the] gate actions[,] and not suing Defendant Siggard.” The “gate actions” likely
should not have been included, but Judge Holmes did not conclude, as the Hudacks
assert, that the entire fiduciary duty cause of action was summarily adjudicated when
ruling on the motion in limine. Thus, the Hudacks’ contention is unpersuasive.
D. JURY INSTRUCTION
1. PROCEDURAL HISTORY
In the Hudacks’ fifth amended complaint, they alleged the Association breached
its fiduciary duty by “fail[ing] to publish or distribute the necessary material by which
the membership may be informed of their review and of approval standards and
processes.” In other words, the Hudacks asserted the Association was not following its
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rules as published in the CC&Rs and governing documents, so the Association had an
obligation to provide documents reflecting the rules it was following.
The trial court instructed the jury as follows: “The owner of an interest in real
property in a common interest development shall provide to the prospective purchaser
certain documents, including a copy of the governing documents of the common interest
development. This is an obligation of the seller, and there’s no obligation on the part of
the Association of the common interest development to provide any documents to a
prospective purchaser.”
2. ANALYSIS
The Hudacks contend the trial court erred by instructing the jury that the
Association “had no obligation ‘to provide any documents to a prospective purchaser,’”
because (1) that “is not an accurate statement of the applicable law”; (2) the Hudacks
sued as owners, not prospective buyers; and (3) the instruction “misled the jury into
believing that [the Association] owned no duties to the Hudacks to deliver any
documents,” which the Hudacks assert led to the court effectively directing a verdict in
favor of the Association.
We review the propriety of a jury instruction under the de novo standard. (Miller
v. Weitzen (2005) 133 Cal.App.4th 732, 736, fn. 3.) We begin with the contention that
the instruction is not an accurate statement of the law. Former section 1368, subdivision
(a), provided: “The owner of a separate interest . . . shall, as soon as practicable before
transfer of title to the separate interest or execution of a real property sales contract
therefor, as defined in section 2985, provide the following to the prospective
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purchaser:” a copy of the governing documents, and various other documents, such as
meeting minutes, if requested by the purchaser. (§ 1368, subd. (a) [eff. Jan. 2005].)
The jury instruction accurately reflected the law of former section 1368,
subdivision (a), in that the statute required a property owner to give a prospective
purchaser certain documents pertaining to the relevant homeowners’ association, and
the instruction informed the jury of this exact rule.
The instruction also informed the jury that an Association has no obligation to
provide any documents to a prospective purchaser. This is also an accurate reflection of
the law. Former section 1368, subdivision (b) provided, “Upon written request, an
association shall, within 10 days of the mailing or delivery of the request, provide the
owner of a separate interest with a copy of the requested items,” such as the governing
documents. The law reflects an association could be obligated to send the documents to
a property owner, but it does not mention a prospective purchaser, thus, the jury
instruction correctly reflected the law.
The Hudacks assert the jury instruction did not accurately reflect the law because
it ignored the Association’s continuing duty to update the Hudacks about proposed rule
changes. (§ 1357.130.) The Hudacks’ argument is not persuasive because the jury
instruction does accurately reflect the law of section 1368. The fact that a different
statute that is not mentioned within the instruction does not make the instruction
inaccurate. The Hudacks may feel the overall package of instructions was incomplete
due to a failure to include an instruction on the law of section 1357.130, but that does
not mean the instruction concerning section 1368 presented the law incorrectly.
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Next, we turn to the Hudacks’ contention that the trial court erred by instructing
the jury with the law of section 1368 because the Hudacks sued as property owners, not
prospective buyers. We agree. The Hudacks’ fifth amended complaint laments the lack
of “annual notice[s]” updating members of the Association on the Association’s
practices and procedures. Assuming the trial court erred by giving an irrelevant jury
instruction, we turn to the issue of prejudice. The Hudacks provide no argument
concerning the issue of prejudice. As a result, we conclude the issue has been forfeited.
(See Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1038
[“‘“‘Prejudice is not presumed and the burden is on the appellant to show its
existence’”’”].)
Lastly, we address the Hudacks’ argument that the trial court erred by instructing
the jury on the law of section 1368 because the instruction “misled the jury into
believing that [the Association] owned no duties to the Hudacks to deliver any
documents,” which the Hudacks assert led to the court effectively directing a verdict in
favor of the Association. As the Hudacks point out, they sued as property owners, not
prospective buyers. As a result, it is unlikely that the instruction misled the jury about
the Hudacks’ case, because it was fairly clear the instruction did not apply to the
Hudacks’ situation. In other words, rather than being misleading, the instruction was
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mostly irrelevant.9 Accordingly, we are not persuaded that the instruction misled the
jury.
Nevertheless, assuming the instruction could be found to be misleading, we will
address the Hudacks’ concern that the trial court effectively directed a verdict for the
Association on this point. We disagree with the Hudacks’ argument because the breach
of fiduciary duty cause of action was not included on the verdict form. As a result, the
jury’s verdict could not have been directed, because there was no verdict.
DISPOSITION
The judgments are affirmed. Respondents (1) Wayne Siggard, (2) Monteleone
Contractors, Inc., (3) the County of Riverside, and (4) the La Cresta Property Owners
Association, are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RICHLI Acting P. J.
CODRINGTON J.
9 We theorize that a relevance argument could be made to the extent section 1368 may have applied when the Hudacks purchased Siggard’s former property.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment in a dispute between neighbors regarding grading work, finding no error in the jury's verdict on nuisance claims or the trial court's rulings on demurrers and writs.
Issues
Whether substantial evidence supports the jury's private nuisance verdict in favor of Siggard.
Whether the trial court erred in jury instructions regarding the Hudacks' private nuisance claims against Siggard and Contractor.
Whether the trial court erred in denying a motion for new trial based on alleged inconsistencies between jury instructions and the special verdict form.
Whether the trial court erred in granting the Association's demurrer on breach of contract and fiduciary duty claims.