Getting Rassekhi Right: A Response to the Robert Gold’s Palisadian-Post on Marquez Knolls View Rights

Posted on July 18, 2026 by Admin
By Keith Turner

On July 17, the Palisadian-Post published a piece by Robert Gold — a real estate attorney and co-president of the Marquez Knolls Property Owners Association — titled “CC&R View Protections: Rebuilding in the Marquez Knolls.”

We agree with the article’s central point. We made the same argument here on June 22. But because homeowners across the Palisades are deciding right now whether to act, precision is worth more than reassurance — but there are two points worth commenting on.

Where we agree

Eisen v. Tavangarian (2019) 36 Cal.App.5th 626 did not wipe out Marquez Knolls view protections across the board. What Eisen held is narrower than the neighborhood folklore suggests: that paragraph 11 of the CC&Rs — the view-obstruction covenant — does not reach the renovation or alteration of an existing residence. The court’s reasoning was textual. Paragraph 11 restricts structures “erected,” and pointedly omits the word “alter,” while paragraphs 1 and 2 use both verbs. From that omission the court concluded paragraph 11 governs outbuildings and new construction, not the remodeling of a home already standing.

The article is also correct that Eisen expressly declined to decide whether a single-story home may be rebuilt as two stories. That reserved question sits at the center of today’s rebuild debate — and, as explained below, the post-fire rebuilds present it on unusually strong facts.

So the core thesis holds: the covenants are not a dead letter, and a rebuild that unreasonably blocks a neighbor’s view can be challenged. The two clarifications concern how strong the recent ruling actually is, and who is left to do the enforcing.

Clarification one: a demurrer is not a ruling on the merits

The article describes the ruling as confirming that the view protections are “alive and enforceable.” That reads a final victory into what was, procedurally, only a green light to proceed.

Rassekhi v. Cheng (L.A. Super. Ct. No. 26STCV02044) came before the court on a demurrer — the defendant’s motion arguing that, even accepting every allegation as true, the complaint failed as a matter of law. Judge Lui’s June 23 order did the following: it overruled the demurrer as to the breach-of-CC&Rs claim and the declaratory relief claim, and it sustained the demurrer, with leave to amend, as to the nuisance and negligence claims. Two of the four causes of action were knocked out at the pleading stage.

More important, the court did not decide that the Cheng rebuild violates anyone’s view rights. It held the opposite of a merits ruling: that whether the structure “unreasonably obstructs” a neighbor’s view is a question of fact that cannot be resolved on a demurrer. That issue is reserved for trial.

The practical translation for homeowners: surviving a demurrer means the case goes forward, not that the view is protected. A neighbor who wants to stop a view-blocking rebuild still has to prove unreasonable obstruction to a judge — typically through survey evidence, photographs, story poles or framing, and expert testimony. That is a winnable fight, but it is a fight, and no one should treat Rassekhi as having pre-decided it.

Clarification two: the same ruling confirms the MKPOA is no longer the enforcer

This is the point the article leaves out, and it is the one that matters most for how owners should plan.

The reason the paragraph 11 claim survived is the distinction between erecting and altering. A home reduced to ash in the January 2025 fire is no longer an “existing residence” to be remodeled. Rebuilding it is the erection of a new structure — the precise activity paragraph 11 reaches, and the activity Eisen‘s renovation exemption never touched. Under Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, which Eisen left intact on this point, paragraph 11 bars erecting a structure that “unreasonably obstructs” the view from any other lot. That same logic revives paragraph 1’s one-story height cap: erecting a new dwelling is unquestionably an “erection,” and the two-story exception requires an approval that no body is left to grant.

Which is exactly the problem the article does not mention. In the same ruling, the court reaffirmed that the MKPOA’s authority under paragraph 2 — its power to approve or disapprove building plans, and its discretion to sue to enjoin non-conforming construction — expired by the CC&Rs’ own terms on December 31, 1995. The court rejected the argument that a 1994 assignment of rights revived that authority, reasoning that the declarants could not assign a paragraph 2 power they no longer held. The architectural-approval regime the neighborhood once relied on is gone, and it is not coming back through the association.

None of this is a knock on the MKPOA, which has historically fought for view rights — it filed amicus briefs supporting the homeowners in both Zabrucky and Eisen. Its post-fire View Impact Analysis process, which the article previews, is a genuinely useful tool for heading off disputes before they reach a courtroom. But it is a voluntary, advisory process, not a legal gate. As a matter of law, the association can no longer approve, disapprove, or block a rebuild under paragraph 2. When a piece written by the association’s co-president tells owners their covenants are “alive and enforceable” without noting that the association itself lost its enforcement authority thirty years ago, owners could be forgiven for assuming someone else will protect their view. After Rassekhi, the enforceable right that remains is the individual owner’s — paragraph 11 runs as a servitude in favor of every lot in the tract, and it is each benefited owner who must assert it.

What this means if you are rebuilding — or watching a neighbor rebuild

A few concrete points for Marquez Knolls owners:

The covenants still bite new construction. A fire rebuild is new erection, so both paragraph 11’s unreasonable-obstruction limit and paragraph 1’s one-story cap are in play — with the two-story exception unavailable because no committee or association survives to approve it. Owners and their architects who treated the covenants as a formality should reassess before adding a second story or raising a roofline.

Confirm your own tract’s language. The sunset dates and exact wording vary tract to tract — the architectural committee and association powers ran to different dates in different tracts. Before anyone relies on the analysis above, pull the recorded CC&Rs for the specific tract.

It is your right to enforce, and timing matters. Because the association is not the gatekeeper, a homeowner whose protected view is threatened generally has to act, and act early. The leverage is greatest before framing goes up; waiting invites both a fait accompli and a laches defense. Document the view and the projected impact now — surveys, dated photographs, story poles or framing elevations.

Rassekhi is persuasive, not binding. It is a trial-court order, and a demurrer order at that. It signals how a court may treat a fire rebuild, but it does not settle the law, and the “unreasonable obstruction” question remains one of fact in every case.

Bottom line

The larger lesson runs deeper than any single ruling. Zabrucky, Eisen, and the dozen or so trial-court decisions that have followed them reflect the courts’ genuinely differing views on how these view covenants should be interpreted and enforced — a divide that has often turned on little more than which judge is deciding what counts as an “unreasonable obstruction.” The law here is unsettled, fact-intensive, and unforgiving of delay. Whether you are the one building or the one impacted by a neighbor’s project, it is important to contact an experienced view-rights attorney as soon as possible — well before the plans are final and the framing goes up.

This article is for general informational purposes and offers commentary on a tentative, non-final trial-court ruling in a pending case. It is not legal advice, and reading it does not create an attorney-client relationship. Anyone facing a specific view-covenant or rebuilding question should consult qualified counsel about their own circumstances.

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Rebuilding After the Palisades Fire: Why Marquez Knolls View Covenants Still Bite New Construction

Posted on June 22, 2026 by Admin

A recent ruling in a pending case (Rassekhi v. Cheng) signals that homeowners rebuilding fire-destroyed homes cannot treat the neighborhood’s recorded view protections as a dead letter — and that the long-dormant one-story height limit may be back in play.

The January 2025 wildfires that swept the Pacific Palisades left hundreds of lots cleared to the dirt. As rebuilding accelerates, a question that seemed settled for a decade is suddenly live again: do the recorded view covenants that govern neighborhoods like Marquez Knolls still restrict what can go up on those lots? A tentative ruling from the Los Angeles Superior Court suggests the answer, at least for ground-up reconstruction, is yes.

The dispute

In Rassekhi v. Cheng (Case No. 26STCV02044), several homeowners sued a neighbor whose home, destroyed in the fire, is being rebuilt on the downhill, ocean-facing side of the tract. The plaintiffs allege the new structure — with changes in square footage and a higher roofline than the pre-fire house — will obstruct their views in violation of the tract’s CC&Rs.

The defendant demurred, arguing that even if every allegation were true, the claims failed as a matter of law. The court disagreed. It overruled the demurrer as to the central breach-of-CC&Rs claim and the declaratory relief claim, allowing both to proceed, while giving the plaintiffs leave to replead two secondary “nuisance” and “negligence” theories.

The headline takeaway: the view-covenant claim survives, and it survives because of how the court treated the rebuild.

Why this was supposed to be a loser — and why it isn’t

In 2019, the Court of Appeal in Eisen v. Tavangarian (2019) 36 Cal.App.5th 626 held that the view rights protection provided in ¶11 of the CCRs did not apply to alternations (remodels) of existing home. 

¶11 provides:  “No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front setback line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.”

Eisen essentially reversed a 2005 case, Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, which held that ¶11 applied to remodels.  Unfortunately the California Supreme Court denied a petition to review to reconcile Eisen and Zabrucky.   Since Eisen, the trial courts have applied it over Zabrucky.  (Please contact me if you have information otherwise.)

It is worth being precise about what Eisen actually held. The Marquez Knolls CC&Rs contain three relevant provisions.

Paragraph 1 caps homes at one story, with a narrow exception for an approved two-story dwelling.

Paragraph 2 required architectural-committee (later homeowners-association) approval of building plans — but that approval requirement sunset by its own terms.

Paragraph 11 bars “structures erected” that obstruct a neighbor’s view.

Eisen held that neither paragraph 1 nor paragraph 11 restricts the renovation or alteration of an existing residence. Its reasoning was textual: paragraph 11 speaks only of structures “erected,” and omits the word “alter,” so it reaches outbuildings and new construction — not remodels of a home that is already there. Alterations had been governed solely by paragraph 2, and paragraph 2 had expired. The net effect was a widely shared assumption that Marquez Knolls view covenants had little practical force.

That assumption rests on a word the post-fire rebuilds cannot claim: existing. Eisen freed alterations to an existing residence. It said nothing that frees the construction of a brand-new home on a lot where the prior structure has been reduced to ash.

Point one: a fire rebuild is an “erection,” not a renovation — so paragraph 11 applies

This is the distinction the Rassekhi court seized on. A home destroyed by fire is no longer an “existing residence” to be altered or remodeled. Rebuilding it is the erection of a new structure — the precise activity paragraph 11 reaches.

Under Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, which Eisen left intact on this point, paragraph 11 prohibits erecting a structure that “unreasonably obstruct[s]” the view from any other lot. The Rassekhi court applied exactly that standard, reasoning that paragraph 11 permits “erecting” a dwelling only where it does not unreasonably obstruct a neighbor’s view — and that whether this particular rebuild does so is a question of fact that cannot be resolved on a demurrer.

The significance for the Marquez Knolls homeowners is hard to overstate. Eisen’s renovation exemption is the homeowner’s best friend when the project is a remodel. It is irrelevant when the project is a teardown-and-rebuild — and after the fire, an entire neighborhood’s worth of projects are exactly that. The covenant that everyone assumed was toothless turns out to have its sharpest application in precisely the situation the Palisades now faces.

Point two: the one-story limit applies too

The less obvious — and for rebuilding owners, more consequential — point is that paragraph 1’s one-story height cap should also apply to new construction as well.

Paragraph 1 sets the rule plainly: no structure may be “erected” other than a one-story dwelling, except that a two-story dwelling “may be erected” where, “in the judgment of the Declarant and approved by the Architectural Committee,” it “will not detract from the view of any other lot.” The exception, in other words, is conditioned on two approvals: the Declarant’s judgment and the Architectural Committee’s sign-off.

Neither approval can be obtained today. The Architectural Committee’s powers ended on December 31, 1980, and the successor homeowners-association powers ended on December 31, 1995. There is no longer any entity authorized to approve a two-story dwelling under paragraph 1’s exception.

That matters because of how paragraph 1 is built. Eisen let alterations escape paragraph 1 by noting that its two-story clause says “erected,” not “altered” — so it does not govern altering an already-approved home. A ground-up rebuild closes that escape hatch: erecting a new dwelling is unquestionably an “erection.” And once the project is an erection, the two-story exception is unavailable, because the bodies that alone could grant it no longer exist. What remains is the default: one story.

Notably, the Eisen court expressly declined to decide “whether a single-story residence could now be remodeled to add a second story.” The appellate court left that door open. The post-fire rebuilds walk straight through it — and they do so on the strongest possible facts, because they involve new erection rather than the alteration Eisen was careful to cabin its holding to.

The takeaway for owners rebuilding in Marquez Knolls

The demurrer ruling in Rassekhi is not binding precedent, but it signals that other courts may conclude the Eisen renovation exemption does not extend to full rebuilds. Owners and design professionals who have treated view covenants as a formality should reassess before moving forward with plans that increase rooflines or add a second story:

  • A fire rebuild is new construction, and paragraph 11’s “unreasonably obstruct” standard applies to it.
  • Paragraph 1’s one-story cap very likely governs that new construction, because the two-story exception now has no one left to approve it.
  • A neighbor with a protected view has a viable claim — and the leverage to litigate it — well before the framing goes up.

For a neighborhood rebuilding all at once, those are not abstractions.

Minute Order 6-23-26 demurrer sustained (Rassekhi vs. Cheng)Download

This article is for general informational purposes and reflects commentary on a tentative ruling that is not final and may change. It is not legal advice, and reading it does not create an attorney-client relationship. Anyone facing a specific view-covenant or rebuilding question should consult qualified counsel about their own circumstances.

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Private Cause of Action for Municipal Code violation (Gov’t Code 36900): California Supreme Court case update Cohen v. Superior Court is fully briefed

Posted on April 27, 2026 by Admin


Can You Sue Over a Neighbor’s Code Violation?

Question: How can an attorney help a client when a neighbor violates local building or zoning codes—and the city refuses to investigate or enforce?

The Core Issue: Does Government Code Section 36900(a) grant private citizens the right to enforce municipal ordinances through civil action?

The right to seek redress by civil action is at stake. The California Supreme Court granted review, and all briefs have been filed.

The next step is waiting for the Court to schedule the oral arguments.

For more information on this case, go to: HERE

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The California Supreme Court granted review of Riley 

Posted on June 6, 2024 by Admin

Fighting for property owner’s view rights!

On September 18, 2024, the California Supreme Court granted Turner Law’s petition for review in Cohen vs. Superior Court (Schwartz): “The issue to be briefed and argued is limited to the following: “Does Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances?” That statute provides in part: “The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” (emphasis added)

In other words, at issue are property owners’ fundamental right to file a civil action to seek enforcement of a local building or zoning code ordinance that is intended to relate to view protection.

Please CLICK HERE to contact us if you want further information.

Uninvestigated Violations: The fundamental concern here is the City of Los Angeles’s limited and seemingly selective enforcement of fence and hedge height violations, which raises significant questions about equity and fairness in urban governance. Many residents have expressed frustrations, feeling that certain neighborhoods are scrutinized more closely than others, leading to a perception of bias in the enforcement process. The City of Los Angeles’s position is that citizens do not have the right to seek redress for code violations, leaving many individuals feeling powerless against the arbitrary application of these rules. Furthermore, this situation can create negative ramifications for community harmony, as residents may feel they are at the mercy of an inconsistent regulatory framework. For those interested in deeper legal implications, click here to review the City’s “Amicus” brief that it filed in the Court of Appeal to better understand the official stance and the arguments being made regarding these pressing issues.

BACKGROUND

The Turner Law is often asked by property owners for legal help when a neighbor is violating a building or zoning code provision related to view protection, such as a local fence or hedge height ordinance. These violations can be particularly frustrating, as they not only obstruct scenic views but can also impact property values and the overall enjoyment of one’s home. Many cities and towns in California recognize the importance of preserving views and limit the height of fences and hedges in residential areas to six feet. This regulation aims to maintain a sense of openness and aesthetic appeal in neighborhoods, ensuring that homeowners can enjoy their beautiful surroundings without excessive obstruction. In addition to legal advice, the View Rights Center assists residents in navigating the complexities of local ordinances, empowering them to enforce their rights effectively while fostering goodwill and cooperation with neighbors.

In 2002, the Second District Court of Appeal in Riley v. Hilton Hotels Corp., 100 Cal. App. 4th held that Government Code section 36900 allows a private party to sue for redress for violation of a Municipal Code.

Using 36900 to enforce hedge and fence height law (Riley)

For instance, based on Riley a homeowner in Morro Bay brought a civil action because the City refused to enforce its hedge height law, because the City deemed the Myoporum to be trees, not hedges, and that “‘the code [section limiting the height of hedges] doesn’t limit the height of trees.'” Kraus v. Grilli (Cal. Ct. App., 2015) The neighbor had replaced eucalyptus trees with a row of five or six “fast-growing” Myoporum laetum shrubs (Myoporum) that were planted along the boundary. By the time of trial, the Myoporum had grown to a height of approximately 23 feet
and a length of approximately 50 feet. The plants blocked sunlight and respondent’s
ocean views.

During the trial, the judge visited the parties’ residences and viewed the Myoporum. The judge determined based the nature, size, location, and purpose, the Myoporum constitutes a hedge and fence within the meaning of the Morro Bay Municipal Code.” The court determined that the hedge was a private nuisance and was in violation of the municipal code’s height limit of six feet, six inches. The judgment ordered a “permanent mandatory injunction requiring the neighbor or any other successive owner to “either remove the hedge in its entirety or remove “at least 5 feet of the mature canopy per year . . . to a maximum height not to exceed six feet, six inches.”

On appeal, the neighbor argued that the property owner did not have standing to enforce compliance with the height ordinance. The neighbor argued: “This Court should reverse the trial court to discourage officious private citizens from using
their neighbors to enforce local ordinances. If [as here] the ordinance is silent on standing, enforcement is best left to the city that created the ordinance and can best show meaningful restraint in resolving disputes as the City of Morro Bay did here.” “If an ordinance should be privately enforced, that right should be conferred by the city that authorizes the ordinance, not seized by private citizens with the resources to hire lawyers.”

The Court of Appeal rejected that argument based on Riley, stating: “Respondent had standing to enforce the ordinance. Government Code section 36900, subdivision (a), provides: “The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” This section “expressly permits violations of city ordinances to be ‘redressed by civil action.’ … [Appellant] refer[s] us to no state law that allows a city to abrogate the right of redress created in the Government Code. We decline to read into the Municipal Code an intent to create an impermissible conflict with state law by abrogating the right to a civil action created by the Government Code.” (Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607.) Thus, the Court of Appeal affirmed the decision in an unpublished decision.

Based on Riley and Krauss, many civil actions have been filed to enforce local hedge and fence height regulations, as well as other important land use laws. These legal disputes often arise when property owners believe that their neighbors are not adhering to established height restrictions or are otherwise misusing their land in ways that infringe upon the enjoyment and value of adjacent properties. The local governing bodies often do not have the resources to investigate and enforce these laws, leading to a backlog of complaints that remain unaddressed for extended periods. Moreover, local officials often do not want to get involved in neighbor disputes. Sometimes it seems that favoritism is being used. This often results in residents feeling frustrated and powerless while their neighbor violates the law. If local officials do not have the resources or wherewithal to enforce their own laws, property owners should be able to seek redress through civil action.

Schwartz vs. Cohen

Homeowners in Brentwood had asked their neighbor to trim his hedges that were blocking their view. When he refused, the homeowners filed a code enforcement complaint with the City. Because the City had not even started its investigation, the homeowners filed a civil action. Because the trial court overruled (denied) the defendants’ demurrer, the defendant retained one of the most well known appellate specialists to file a writ, which Second Appellate District granted on June 5, 2024, Cohen et al. v. Superior Court Los Angeles County et al., (Case: B330202). The Court of Appeal certified its opinion for publication. The court concluded “the doctrine of stare decisis does not prevent us from reexamining and disagreeing with Riley. Thus, we overrule Riley and disavow its recognition of a private right of action by members of the general public under section 36900, subdivision (a). We therefore will issue a peremptory writ of mandate as requested by the Cohens.” To be clear, we hold only that section 36900 does not authorize private parties to bring civil suits to enforce local ordinances. We do not disturb caselaw recognizing that, in some instances, a defendant’s violation of a local ordinance may be relevant to, or provide an element of, some other cause of action by a private party, such as nuisance or public nuisance.”

Supreme Court Review

Attorneys affiliated with the View Rights Center filed a petition for Supreme Court Review. Other attorneys filed amicus briefs.

On September 18, 2024, the California Supreme Court granted the petition as follows:

The petition for review is granted.

Pending review, the opinion of the Court of Appeal, which is currently published at 102 Cal.App.5th 706, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.)

The issue to be briefed and argued is limited to the following: Does Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances?

Votes: Guerrero, C. J., Corrigan, Liu, Kruger, Groban, Jenkins and Evans, JJ.

Under Supreme Court Rules, the opening brief is currently due by October 18, 2024. This timeline is crucial, as it sets the stage for the case to unfold in the legal system. An important legal right to seek “redress” by civil action is at stake, which plays a pivotal role in ensuring that individuals and entities have the opportunity to address grievances and seek justice. Without that right, property owners’ rights are severely limited, restricting their ability to challenge injustices or unlawful actions against their property. Therefore, taking timely action is essential.

Please CLICK HERE to contact us if you want further information, as we are ready to assist you in navigating these complex legal challenges and ensuring that your voice is heard.

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City of Los Angeles “Amicus” Briefs against Riley 

Posted on May 18, 2024 by Admin
Amicus Brief by the City of Los Angeles (s.3-20-24)Download
City’s MOTION FOR LEAVE TO FILE OPPOSITION TO THE MOTION TO DISMISSDownload
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Fence, Tree, and Hedge Height Law

Posted on December 3, 2023 by Admin
By Keith Turner and Justin Escano

Fence, Tree, and Hedge Height Law

  1. Is property subject to CCRs or other recorded property specific restrictions?
  2. Local Zoning – local Municipal Code provisions
  3. Spite fence law

  1. Is property subject to CCRs or other recorded property specific restrictions?

First, obtain a title report.  Many properties, such as large areas north of Sunset Blvd. in Pacific Palisades, are subject to recorded CC&Rs (conditions, covenants, and restrictions), DORs (declarations of restriction) or similar recorded restrictions which limit heights of fences, trees, etc.  For instance, some of the Marquez Knolls CC&Rs limits boundary fences and walls to a height of three feet.   (Tract 2622, ¶14)

  1. Local zoning – Municipal Code provisions

Many residential properties in California are subject to local fence, wall and hedge height ordinances, which often limit the height to six (6) or eight (8) feet in height.  These zoning law often defines the terms “fence” and “wall” to include: latticework, ornamental fences, screen walls, hedges or thick growths of shrubs or trees.

For instance,  Los Angeles Municipal Code §12 22.C.20.(f) provides: 

  • FRONT YARD FENCES: in most residential areas, fences, hedges, trees are limited to 3.5′ in height in the front yard.
  • SIDE YARDS, REAR YARDS AND OTHER SPACES: 6′ or 8′ depending on property’s zoning. For example:
    • 8 ft. maximum height – R zoned property, if lot width is 40 ft. or greater and not in hillside area.
    • 6 ft. maximum height – R zone if lot width is less 40 ft
    • 6 ft. maximum height – R zone, hillside area.

See LAMC §12.22.C.20.(f)(3) for full text of law and height limits in other property zones (which is below).

How measured?

  • The Ordinance states: “Fence and wall height shall be measured from the natural ground level adjacent thereto.”
  • BUT see LADBS, INFORMATION BULLETIN / PUBLIC – ZONING CODE

screenshot

  1. Spite Fence Law

What is a spite fence?

California spite fence law starts with Civil Code section 841.4. It states, “any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” The statute is not limited to traditional fences. In Wilson v. Handley (2002) 97 Cal.App.3d 1301, the Court of Appeals held that trees and hedges planted in a row to form a barrier may be deemed a spite fence. The court agreed in Vanderpol v. Star (2011) 194 Cal.App.4th 385, finding that at row of pine trees planted along a neighbor’s boundary line could be considered a spite fence for the purposes of the statute.

The court in Wilson v. Handley expanded the definition of a “structure in the nature of a fence.” Defendants argued that a row of trees was a not a “structure”, and thus could not come under Section 841.4. The court, however, defined a fence as  a “structure … erected … to separate two contiguous estates,” and “a barrier intended … to mark a boundary.” Ultimately, the court concluded that, in light of the purpose of the spite fence statute, the term “fence” should be liberally construed. By this reasoning, other non-traditional fence-like structures may come under the California spite fence statute.

The Los Angeles Municipal Code has its own spite fence statute. LAMC Section 41.30 states, “”No person shall maliciously construct, erect, build, plant, cultivate or maintain any fence or wall or any hedge or similar growth unnecessarily exceeding six (6) feet in height, for the purpose of annoying the owners or occupants of adjoining property.”

NEXT STEPS

Keith Turner/the Turner Law Firm has handled hundreds of fence, wall, hedge and tree height disputes.  If you are interested in pursuing a claim or have to retain counsel to defend against a claim, please contact mm@turner.law to request an initial consultation.

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6/21/19 COURT OF APPEAL GUTTED VIEW RIGHTS PROVIDED BY THE MARQUEZ KNOLLS CC&Rs

Posted on February 9, 2023 by Admin

UPDATE 2.9.23: Since the Court of Appeal’s decision in June 2019, there have been new cases interpreting the Court’s analysis. More information here: Post-Eisen Cases

UPDATE 9.12.19: The Supreme Court has denied the Petition for Review and Request for Depublication. More information on the Supreme Court case can be found on the Court of Appeal website.

UPDATE 8.10.19: The Eisen’s and Marquez Knolls Property Owners Association, Inc. are seeking to have the California Supreme Court grant review, which it does in less than 5% of the cases. Nonetheless, affected and interested property owners should support the fight with their own “amicus” letter to the Court” Marquez Knolls Property Owners Association 8/9/19 Amicus Letter

The Court of Appeal just gutted the Marquez Knolls CC&Rs.  Eisen v. Tavangarian – filed June 20, 2019, Second District, Div. Seven , full text click here.

Paragraph 11 of Marquez Knolls CC&Rs provides:

“No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.”

The Court of Appeal framed the issue as: “Does paragraph 11 of the CC&R’s … apply to alterations or renovations to existing homes?”

To summarize the 34 page decision, the Court specifically held: “Paragraph 11 does not restrict renovating or altering existing residences.” But the Court also held that the “Portion of the Judgment Requiring the Street-facing Hedges To Be Trimmed to a Height of Three Feet or Under Is Affirmed.”

So Paragraph 11 applies to trees but not additions or structures?

COMMENT: The decision does not make sense. If trees cannot obstruct a view, does it make sense that buildings can? Hundreds of homeowners have relied on Paragraph 11 ‘s clear intent to protect their views.

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8/1/19: Infamous Rustic Canyon house finally demolished after 17 years of litigation

Posted on August 10, 2019 by Admin

In 1998, a property owner (Mehr Beglari) pulled permits for a remodel of an existing home in the Rustic Canyon area of Pacific Palisades. Five neighbors complained to the Los Angeles Department of Building and Safety (LADBS), alleging that the house exceeded a height of 36 feet from grade; the front yard depth was not properly measured; and that a yard variance granted in 1955 precluded the remodel design. The five neighbors included two Superior Court Judges and a prominant attorney. When the LADBS concluded that the Beglaris’ permits were properly issued, the neighbors appealed the case to the Department of City Planning, which sided with the LADBS.

The neighbors persevered. In 2002, they filed suit in Los Angeles Superior Court to challenge the ruling by the Department of City Planning. They dropped two of their complaints, targeting only on the front-yard setback issue. (click here to read the Complaint and other court documents.) In October 2003, the trial court ruled in favor of the neighbors, and ordered the City to revoke all of the building permits for the structure, including the certificate of occupancy. The Beglaries and the City of Los Angeles subsequently appealed.

The writ was affirmed by the court of appeal. Horwitz v. City of Angeles (2004) 124 Cal. App. 4th 1344. The court that then newly-remodeled house encroached onto the front-yard setback by 14 feet, in violation of Los Angeles Municipal Code section 12.07.01.C.1.

After the Court of Appeal decision, the City revoked all building permits and the certificate of occupancy for 909 Greentree, leaving the Belgaris with an un-permitted home. However, the Belgaris did not sit idly by; instead, they hatched a plan to get their permits back. In 2004, they purchased another property, right down the street, at 921 Greentree Road. Then, they obtained a permit for and constructed a small canopy on  the front of 921 Greentree. The new canopy changed the front-yard setback calculation for the entire block, including for their house at 909 Greentree.

Based on this altered front-yard setback calculation, the Belgaris’ home  at 909 Greentree satisfied the LAMC requirements. In February 2006, the City reinstated the building permits and certificate of occupancy for 909 Greentree.

The neighbors responded by filing another lawsuit, this time against the City of Los Angeles and the LADBS general manager, for reissuing the permits in violation of the court’s prior order. The superior court issued an order finding that the City and the Department of Building and Safety were in contempt for violation of that order, and ordered them to appear for appear at an arraignment and trial setting.

However, the case never got to trial. Instead, in February 2007, the City Council approved a $425,000 settlement for the five neighbor-plaintiffs.  The Belgaris’ attorney asked the City not to settle, accusing the neighbors of “intimidating and bullying the City” into paying into paying what amounts to blood money.” Nonetheless, due to the high potential damages exposure and potential criminal contempt proceedings, the City Attorney recommended that the City settle the dispute by paying the plaintiffs’ attorney fees, which at the time totaled $425,000.

The litigation between the City and Belgaris continued until 2013, with at least two more trips to the Court of Appeal in 2009 and 2013. Apparently the litigaiton ended in 2013.

According to public records, it appears that the Belgaris lost the home to foreclosure in 2016. In 2018, the new owner sought a demolition permit, and according to Nextdoor website, as of July 31, 2019, the structure was finally being demolised.

To the author, the question is whether the result would have been different if the complaining neighbors had directly sued the property based on Gov’t Code section 36900 instead of proceeding by writ action against the City?

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Horowitz/Belgari case documents

Posted on August 10, 2019 by Admin
Below is a collection of documents from the infamous Horotiwz and Belgari cases which have resulted in the demolition of the residence at 909 Greentree Road in the Rustic Canyon area of Pacific Palisades.

2002 Complaint Horwitz vs. City of L.A. Download
2004 Court of Appeal decision, Horwitz v City of Los Angeles Download
2009 Court of Appeal decision, Horwitz v City of Los AngelesDownload

2013 Court of Appeal decision, Beglari v. City of Los Angeles Download
Docket for Horwitz vs. City LA (as of 8-10-19)Download
Docket for BEGLARI vs. CITY OF LOS ANGELES (as of 8-10-19)Download

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(THIS POST HAS BEE UPDATED.) Marquez Knolls’ view rights under attack again (Eisen vs. Tavangarian)

Posted on December 26, 2018 by Admin

THIS POST HAS BEEN UPDATED IN LIGHT OF THE 6/20/19 COURT OF APPEAL DECISON.  CLICK HERE

Marquez Knolls’ view rights under attack again (Eisen vs. Tavangarian)

Since the 1950s, property owners in the Marquez Knolls tracts in Pacific Palisades have relied on the recorded CC&Rs to protect their views.  Although the original architectural committee’s powers expired on December 31, 1995, many property owners believed that their view rights continued by CC&Rs Paragraph 11, which did not have a termination date, and which provides:

“No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future unreasonably obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.”

(The word “unreasonably” was added to ¶11 by the Court of Appeal in its 2005 decision in Zabrucky v. McAdams (2005) 129 Cal.App.4th 618.)

For the reasons discussed below, it could now be the perfect storm to reverse or materially change the view rights that were provided in Zabrucky.

There is a case currently on appeal that is seeking to reverse or limit the view rights the court affirmed in the 2005 Zabrucky case.  The current case is Eisen vs. Tavangarian  (See opening brief served on Sept. 25, 2017.)   Concerned Marquez Knolls’ property owners can voice their concern by submitting an amicus brief by the court deadline.  (Contact us for information on the deadline.)

The plaintiffs in Eisen sued a well known local developer for obstructing their view.  The trial judge found in favor of the plaintiffs and ordered the defendant to remove a portion of the new “spec” house he had constructed.   The defendant is presently appealing the judgment against him, and in his opening appellate brief is seeking to the view rights it affirmed in the Zabrucky case. 

The plaintiffs in Zabrucky had actually argued that ¶11 precluded any obstruction of their ocean view.  The Court of Appeal in that case was apparently aware that its decision would have a significant impact on the ability to remodel the original aging homes in Marquez Knolls.  The court tried to find a balance, while acknowledging the CC&Rs’ intent to provide view rights.  As the court stated at pages 623-624:

“In common with most coastline housing in Southern California, the prime thing the Marquez Knolls development sold its prospective homeowners was a beautiful ocean view. In fact, like most such housing, much of the value of any property within the development depends on the quality of the view. To significantly obstruct any homeowner’s view of the Pacific Ocean is to depreciate the economic worth of their property-often by several hundred thousand dollars – as well as dramatically reduce their enjoyment of the home they bought and live in. Thus, it is not surprising the rest of the Zabruckys’ neighbors, the MKPOA, filed an amicus brief seeking to enforce the development’s CC&Rs. These provisions, and especially the Paragraph 11 at issue in this case, form their only bulwark against rampant expansions of existing residences that would obstruct views and depreciate land values throughout the entire Marquez Knolls neighborhood.”

The plaintiffs argued that ¶11 prohibited any obstruction.  But the court of appeal in the published decision rejected that argument and instead added the word “unreasonably” to ¶11”.  At page 629 the Court stated:

“However, it is not reasonable to interpret the CC&Rs as prohibiting any obstruction of existing views as urged by appellants. We agree with the trial court’s observation that it would have been impractical for the original drafters of the CC&Rs to have intended that no house be built which obstructed any other owner’s view. Thus, we conclude it would be in keeping with the intent of the drafters of the CC&Rs to read into Paragraph 11 a provision that the view may not be unreasonably obstructed, thus the sentence would read, “may at present or in the future unreasonably obstruct the view from any other lot.” (Change underlined.)”

Unfortunately for the plaintiffs, on re-trial, the trial court judge inspected the properties and decided that defendants’ remodeling project was not an unreasonable obstruction.  (See then Judge John L. Segal’s Statement of Decision 3-1-2006.)

Since 2005, there have been a number of lawsuits filed challenging new construction and remodeling projects and also landscaping on the grounds that the construction or landscaping was or would be an unreasonable obstruction.  (See partial list of case here.)  The many of those cases went to trial and were decided by a judge, not a jury, and it seems the result depended on the particular’s judge’s interpretation of what constitutes to be “unreasonable obstruction.”

The trial judge for the Zabrucky re-trial is now one of the three appellate justices that is deciding the Eisen appeal.  In Zabrucky and supposedly in the other Marquez Knolls cases he decided as a trial court judge, Judge (now Justice) Segal did not find for any plaintiff seeking to enforce ¶11.

But the main concern now is that the Presiding Justice for the Eisen appeal, Justice Dennis M. Perluss, wrote the dissenting opinion in Zabrucky.  In Zabrucky, Justice Perluss disagreed with the majority’s interpretation of paragraph 11, explaining that its “plain language . . . particularly when considered together with other provisions in the CC&R’s,” did not support the majority’s conclusion. (Zabrucky, supra, 129 Cal.App.4th at p. 630 (dis. opn. of Perluss, J.).)

“Apparently uncomfortable with the harsh consequences of their restrictive reading of the view protection clause, my colleagues adopt the suggestion advanced by amicus curiae Marquez Knolls Property Owners Association (but notably not endorsed by the Zabruckys) and create a reasonableness limitation on the absolute prohibition of view obstruction contained in paragraph 11. This effort to mitigate the impact of their decision for homeowners like McAdams and Baines who may wish to renovate homes that are now 40 years old is in many respects commendable, but it constitutes an impermissible rewriting of the express terms of the CC & R’s.”

“The majority’s legitimate concern that paragraph 11 may be applied unreasonably suggests to me it has misinterpreted that provision. Its apprehension, however, is not a justification for a judicial rewriting of the parties’ agreement.”

But more problematic is that Judge Perluss’s dissent in Zabrucky went further by concluding that ¶11 should not even apply to structures:

“Although in other contexts the word ‘structure’ may include the residence itself, given the apparent object of paragraph 11, particularly when read together with paragraph 2, ‘structures’ in this paragraph is properly limited to landscaping or other outdoor items separated from the residence itself—gazebos, trellises, carriage or pool houses.”

The Appellant (Ardie Tavangarian) in Eisen is arguing among other things that “Paragraph 11 applies only to landscaping structures and therefore does not restrict alterations to a residence.“  (Opening Brief, p. 35)  With Justices Perluss and Segal as the appellate justices, it seems from the sidelines that the view rights that many have taken for granted in Marquez Knolls could be eliminated or severely limited by the Court’s decision in Eisen.  

NEWS:   The case was fully briefed as of September 10, 2018, but a group of homeowners, led by the usual suspects, Judith A. Gelfand and Wayne Marcus, sought and obtained permission to file an amicus brief (friends of the court).  The editor of this blog has asked for copies of those briefs.  At this point we assume the the oral argument will be scheduled for late winter or so.  

To get updates about the case directly from the Court of Appeal, CLICK HERE and enter the COA case number: B278271.

10/12/2018 Amicus curiae brief filed by: Amicus curiae for appellant: Marquez Knolls Homeowners et al.
Attorney: Judith A. Gelfand Marquez Knolls Homeowners Judith A. Gelfand, Wayne Marcus, Bernard Hathaway, William R. Fado, H. Peter Grassl, Kathleen A. Kerrigan, Silgia Grassl, Emil Kadrnka, Simon T. Halff, Brian Faris, Peter J. Zomber, Sabrina Diaz and Renate Hecht in support of plaintiffs Glenn Eisen and Alison Eisen.
11/01/2018 Response to amicus curiae brief filed by: Defendant and Appellant: Ardeshir Tavangarian
Attorney: Faryan Andrew Afifi 
Defendant and Appellant: Tania Tavangarian
Attorney: Faryan Andrew Afifi 
Defendant and Appellant: 619 Properties, LLC
Attorney: Faryan Andrew Afifi Defendant’s response to amicus brief
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