by Elias E. Guzman

In Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, the court of appeal recently affirmed a trial court’s ruling that a homeowner’s construction of a wooden deck encroached upon a side yard easement in violation of the homeowner associations’ declaration of covenants, conditions, and restrictions (“CC&Rs”).

Plaintiff Woodridge Escondido Property Owners Association (“Association”) managed a planned residential development called Woodridge in Escondido, California. The homes in Woodridge were “zero lot line” homes, meaning one exterior side wall was built on one of the side yard property lines of the lot on which the home is located. The recorded CC&Rs expressly prohibited the installation of any permanent structure on the easement (other than irrigation systems).

Nielsen owned a home in Woodridge and had a five-foot side yard easement over the side yard of adjoining property of his neighbor. Nielsen built a 17 by 21 foot deck with a full-size hot tub that extended into the five-foot wide side yard easement over the adjacent side yard of the neighboring lot. Nielsen received approval from the Association’s architectural committee to construct the wooden deck that encroached on the easement. After the Association realized the approval was erroneously given, it ordered Nielsen to remove the encroaching portion of the deck and even offered to pay for its removal. Nielsen refused the offer. He disputed the allegation that the deck was a “permanent structure” and litigation ensued.

The Association sued Nielsen in an action for an injunction and declaratory relief to enforce the CC&Rs, seeking an order requiring Nielsen to remove the encroaching portion of the deck. The trial court granted the Association’s motion for summary judgment and motion for attorneys’ fees. Nielsen unsuccessfully appealed; the court of appeal affirmed.

The key factual issue on appeal was whether Nielsen’s deck, which encroached upon the side yard easement of his neighbor’s property, violated the CC&Rs. The court determined that the Association did meet its burden of establishing the deck was a permanent structure and thereby showed the nonexistence of any triable issue of material fact. Neither the CC&Rs, nor grant deed, define permanent structure. The plain language (as defined in the Oxford dictionary) of permanent refers to something that is designed to continue indefinitely without change. The photos submitted by the Association demonstrated the encroachment of the deck and that it appeared to be permanent. Thus, the court concluded the Association met its burden of establishing that a prohibited permanent structure encroached upon the neighbor’s yard and summary judgment was properly decided.

Because the Association met its initial burden of establishing the non-existence of any triable issue of material fact, the burden then shifted to Nielsen to show the existence of such an issue. Nielsen’s declaration, which purportedly responded to the Association’s separate statement of material fact, was determined to have failed to comply with Code of Civil Procedure section 2015.5 regarding the use of unsworn statements and was thus inadmissible. Nielsen did not contend that the court erred in excluding this declaration.

Nielsen also argued that the Association was not irreparably harmed, an essential element to obtaining injunctive relief, because it sued on behalf of Nielsen’s neighbor and thus cannot show it has suffered the injury. Nielsen also argued that the trial court failed to balance the relative hardships of the parties. However, Nielsen argued that he removed the portion of the deck that encroached and thus is no longer an issue and moot. This argument rendered the relative hardship doctrine moot. Irrespective of the mootness issue, Nielsen failed to present any evidence to the relative hardships in this matter that he claims should be balanced. Such a failure, coupled with Nielsen’s ineffective declaration, amounted to no evidence.

In the end, the court held that Nielsen failed to meet his burden of presenting evidence establishing the existence of a triable issue of material fact and the Association met its burden. As such, the trial court’s judgment was affirmed.

Elias E. Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.