The opinion
Filed 10/2/25 Holmby Westwood Property Owners Assn. v. Focus Line CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
HOLMBY WESTWOOD B331094
PROPERTY OWNERS
ASSOCIATION, Los Angeles County
Super. Ct. No. 20SMCV01575
Plaintiff and Respondent,
v.
FOCUS LINE, LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Affirmed.
Goodkin Law Group, Daniel L. Goodkin and Randy Aguirre
for Defendant and Appellant.
Luna & Glushon, Robert L. Glushon and Sean M. Bryn for
Plaintiff and Respondent.
_______________________________
Plaintiff Holmby Westwood Property Owners Association
(POA) is a property owners association for the Holmby Westwood
neighborhood in Los Angeles. Defendant Focus Line, LLC (Focus)
owns property in the neighborhood. Its managing member is
Farhad Larian, an experienced residential developer. Focus
purchased the property (the Property) with an old, dilapidated
house on it, demolished the house, and built a new, much larger,
house in its place. Focus did so despite warnings from the POA
that the new house violated restrictions on the Property. The
POA sued Focus to enjoin Focus’s construction. After a bench
trial, and when the construction was largely complete, the trial
court determined the new house violated valid restrictions on the
Property and ordered the house “removed or modified” to comply
with such restrictions.
For the reasons set forth herein, we affirm the judgment.
BACKGROUND
I. The Neighborhood, the Restrictions, and the POA
The POA is composed of persons owning properties in Los
Angeles’s Holmby Westwood neighborhood (Holmby-Westwood).
There are approximately 1,100 such properties, the product of the
subdivision of several larger tracts. The Janss Investment
Corporation and Holmby Corporation (Janss/Holmby) were
involved in the development of these tracts, including one
identified as tract 9200. Tract 9200 contains between 80 and
85 lots originally developed as single-family residences. The
Property is one such lot. It is located at the corner of Holmby
Avenue and Lindbrook Drive, just north of Wilshire Boulevard.
The Property was first transferred as a standalone lot in
1935 by grant deed (Moss Deed) from Janss/Holmby, as grantors,
to Jack Moss, as grantee. The deed describes the Property as
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“Lot [19] Block [1] of Tract [9200] according to a map of said tract
filed for record in . . . the [Los Angeles County Registrar-
Recorder].” The deed contains no reference to any other tracts or
the greater Holmby-Westwood neighborhood.
The Moss Deed contains several restrictions on the use of
the Property, including that: (1) it could “be used for private
residence purposes only”; (2) any residence built thereon had to
(a) front Lindbrook Drive, (b) sit no closer than 35 feet to
Lindbrook, and (c) sit no closer than 4 feet from the Property’s
side lines; and (3) fences or walls could not be built, nor hedges
grown, (a) along Lindbrook, (b) higher than 3 feet if within 35 feet
of Lindbrook, nor (c) higher than 5 feet anywhere. These
restrictions were to continue in effect until January 1, 1976.
The Moss Deed expressly allowed for exceptions to be made
to some of the restrictions. For example, a garage, a tennis court
fence, or retaining wall could be erected at variance with the
restrictions if first “approved in writing by the grantors.” The
deed contains no reference to any other entity having authority to
permit variances—not a property owners association, not other
owners of properties within tract 9200 or Holmby-Westwood, not
even successors or assigns of Janss/Holmby.
The Moss Deed prescribed only one consequence for breach
of the restrictions: It would “cause title to [the Property] to revert
to [Janss/Holmby], or their successors or assigns . . . .” The deed
did not provide for enforcement by a property owners association
nor by other owners of properties within tract 9200 or in any
other part of Holmby-Westwood.
Even though the grantors did not commit to subjecting all
of the tract 9200 properties or Holmby-Westwood properties to
restrictions, they apparently included restrictions of a similar
3
character in the deeds to all or substantially all of the properties,
with all scheduled to expire in the 1970’s.
Before the deed restrictions expired, the POA formed. Its
initial purpose was to oppose proposed freeway construction in
the area. However, as the stated sunset date of the restrictions
approached, the POA undertook to both extend them and assume
the right to enforce them.
To that end, POA board members went door-to-door to
solicit Holmby-Westwood property owners’ consents “to extend
and modify the restrictions” and “to reaffirm the [POA]’s right to
enforce [them].” Despite the language of reaffirmation, the
parties to the present action stipulated that the POA theretofore
had “not enforce[d] any alleged restrictions for any of the lots in
Tract 9200.”
The POA’s solicitation was only partially successful.
According to the POA’s president, Sandra Brown, “about half” of
an estimated 1,100 homeowners “agreed to stay with the
[restrictions].” By Larian’s count, owners of only about 460 of the
1,150 homes in Holmby-Westwood agreed to do so. The result is a
patchwork of restricted and unrestricted properties, with three
Holmby-Westwood tracts left entirely unrestricted.
The owners of the Property in 1975, Leon and Sally
Naiditch, along with 48 other owners of homes in tract 9200,
were among those to agree to the POA’s proposal. Each signed an
Agreement Extending and Modifying Deed Restrictions, which
was recorded on August 15, 1975 (1975 Extension). More than
30 other tract 9200 owners did not sign the extension.
The 1975 Extension recites a “factual and legal
background,” which includes the statement that “[restrictions]
have been imposed by deeds executed by [Janss/Holmby]
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affecting each of the lots in [tract 9200] . . . .” The parties then
agree that “[a]ll restrictions . . . which presently affect the lots or
affected the lots on December 31, 1974, in [tract 9200] owned by
the persons who sign this [extension], shall be continued in full
force and effect until January 1, 1995,” and thereafter
automatically renewed for 20-year periods unless terminated
pursuant to specified procedures. The 1975 Extension has not
been terminated.
The 1975 Extension went on to establish an Architectural
Supervising Committee (ASC) with oversight over proposed
construction or renovation on subscribing lots. The ASC is to
“function under and pursuant to such reasonable rules”
promulgated by the POA “subject to [seven enumerated] general
provisions.” We summarize the relevant provisions: Proposals are
subject to a two-stage approval process, with a “preliminary”
assessment based on a less-detailed set of plans than the “final”
assessment. At each stage, the ASC must consider a proposed
plan’s “(a) conformity to the deed restrictions . . . ; (b) effect upon
the environment; and (c) harmony of external design with the
surrounding community.” Conformity to deed restrictions is not
compulsory, however. The ASC has discretion to grant variances
to the applicant if it finds a “compelling reason[]” to do so.
Further, whether the ASC approves or disapproves of a plan, it
must give its decision “in writing, signed by at least four [of its]
members.” Failing such a response within 45 days of a proper
plan submission, the submission is deemed approved. If it is
rejected, the applicant has the right to appeal to the POA.
Finally, the 1975 Extension contained an enforcement
provision completely different than that contained in the Moss
Deed: “In the event of any violation or threatened violation of the
5
restrictions by any owner, lessee, or occupant of any lot in
[tract 9200], any or all of the then owners of the lots in the Tract
owned by persons who signed this [extension] shall have the right
to enjoin such violation or threatened violation in a court of
competent jurisdiction.” The 1975 Extension “bind[s] and inure[s]
to the benefit of each person signing it, his . . . successors, and
assigns, and all of the real property in the Holmby-Westwood
area owned by each person signing it. [¶] Both the benefit and the
burden of this [extension] shall ‘run with the land’ owned by each
person signing this [extension].”
The 49 property owners in tract 9200 signing the
1975 Extension were the minimum required to make it effective
by its terms. There is no dispute that the more than 30 lots in the
tract whose owners did not sign it are not subject to any
restrictions.
Nearly 30 years after the 1975 Extension, the ASC issued
Architectural Construction and Improvement Guidelines effective
as of August 1, 2002 (2002 Guidelines). The document is not
signed by any property owner. Nor is it recorded. It purports to
apply to all properties in Holmby-Westwood. Nevertheless, the
POA conceded at trial that the 2002 Guidelines do not apply to
lots that did not sign on to the 1975 Extension. The only evident
authority for the guidelines is that the 1975 Extension gives the
POA the right to promulgate “reasonable rules” for the ASC’s
“function.”
The 2002 Guidelines contain numerous provisions and
restrictions not contained in the Moss Deed or the
1975 Extension, including many on topics not related to any
addressed by those documents. Some relate to restrictions in the
Moss Deed but expand upon or differ from them. For example,
6
the 2002 Guidelines purport to cap the size of structures that
may be built upon lots in Holmby-Westwood. They also limit the
permissible “architectural style” to four different types.
Further, the 2002 Guidelines modify the approval
procedures contained in the 1975 Extension. Among other things,
no longer may plans that vary from the restrictions be deemed
approved by the ASC’s failure to issue a written decision within
45 days. Under the 2002 Guidelines, a variance can “never, under
any circumstances,” be “ ‘deemed’ approv[ed].”
II. Focus Buys the Property; the POA Asserts the
Restrictions in Opposition to Construction
Focus bought the Property in January 2020. The seller was
not the Naiditches, who signed the 1975 Extension, but a
successor. In form disclosures the seller made to Larian, it
certified the Property was not subject to any restrictions or a
homeowners association. However, the preliminary title report
Larian received prior to closing did refer to the restrictions in the
Moss Deed and the 1975 Extension. Larian testified he was
unaware of the contents of the title report, but the trial court
found that testimony not credible. Indeed, the evidence showed
Larian received the preliminary title report, noted the existence
of “covenants,” and asked his agent to “download and review
[them] and alert me to anything unusual or important that I
should review.”
Despite the information in the title report, Focus sought
and obtained building permits from the City of Los Angeles to
build a house that did not conform to the Moss Deed’s
restrictions. Most notably, notwithstanding the 35-foot setback
prescribed by the deed, one corner of the house was to be sited
within seven feet of Lindbrook Drive. Focus began demolition of
7
the existing structure in May 2020. By July 2020, the forms for
the nonconforming foundation were in the ground. Around this
time, Brown contacted Larian by letter. In addition to being
president of the POA, Brown is also a member of the ASC.
Despite her heavy involvement in POA governance and
administration, Brown does not live in Holmby-Westwood.
In her initial letter, Brown asserted the Property was
governed by restrictions “as renewed and signed by a previous
owner.” She then asserted Focus was required to submit plans for
the house to the ASC in the form required by the 2002
Guidelines. She “suggest[ed] that review and approval be
accomplished prior to construction in order to save [Focus] time
and possibly, cost.” Larian acknowledged receipt of the letter by
e-mail a week later. About a week after that, Brown sent Larian
another e-mail reiterating the ASC approval requirement and
advised that, without such approval, Focus was building at its
own risk. She also identified Ellen Turner, another POA board
member and ASC member, as Larian’s point person after plans
were submitted.
On August 3, 2020, Larian sent Brown excerpts of the
plans approved by the City. Turner addressed these in an
August 14 e-mail. She noted a “discrepancy” between the 35-foot
setback from Lindbrook Drive specified in the Moss Deed and the
seven-foot setback at one corner of the house as shown in Focus’s
plans. She proposed Larian “think about [this]” in advance of a
Zoom meeting with the ASC. Otherwise, she said the ASC was
“generally pleased with the design of the house and only ha[d]
minor concerns about finishes.”
But after two lengthy Zoom meetings over the ensuing two
weeks, Focus showed no interest in revising its plans to
8
accommodate the ASC’s concerns regarding the setback.
Nonetheless, Turner e-mailed Larian on August 26, 2020, with an
offer: Focus could proceed with its plans if it received approvals
from a “simple majority” of owners of single-family homes subject
to the 1975 Extension within a 500-foot radius of the Property
(the 500-foot poll). She invited Focus to solicit such approvals by
“letter, subject to [the ASC’s] approval.” She noted the letter
should state the ASC has not approved the setbacks as planned.
Larian immediately prepared a letter and solicited
approvals. But he did not first show it to the ASC for its sign-off.
When Larian forwarded acceptances from more than the
requisite simple majority of applicable neighbors, Turner rejected
them. She explained his solicitation letter failed to adequately
describe the setback issue and invited him to resolicit, but only
after getting ASC’s sign-off on the form of letter.
Larian refused to resolicit. He contended that, in
approaching the neighbors, he had fully disclosed information not
contained in the approval letters and the neighbors “clearly
underst[oo]d the situation.” He told Turner: “We are not going to
further inconvenience the neighbors who have signed the letter.”
Despite Turner telling Larian the ASC would not consider
the approvals he submitted, the ASC sent a follow-up letter to the
approving neighbors that included all disclosures about the
planned construction the ASC deemed relevant. In response, only
two approving neighbors changed their vote. This did not affect
Focus’s attainment of a simple majority of neighbor support. Two
other neighbors—both owners of restricted lots within
tract 9200—separately wrote to the POA opposing Focus’s
proposed construction, one calling it a “visual obimination [sic]”
because of its proximity to Lindbrook Drive.
9
Satisfied with the approvals from neighbors he received in
the 500-foot poll, Larian indicated Focus planned to proceed with
pouring concrete for the foundation of the house with the
setbacks he originally planned. Turner warned him on
September 9, 2020, that he would do so at Focus’s risk.
Undeterred, Focus proceeded.
III. The POA Sues to Enjoin Construction
The POA sued Focus on October 20, 2020, alleging breaches
of the restrictions and seeking declaratory relief that the
restrictions are enforceable and binding against the Property.
The POA sought a temporary restraining order, which the trial
court denied. But in doing so, the court, as the POA had
repeatedly done before, warned Focus that it was proceeding at
its own risk.
In balancing the harms, the trial court observed that “[i]f
[the POA] prevails, [Focus] will be forced to modify construction
to comply with the [restrictions] and any Court order, which
would include tearing down the framing and the foundation. The
cost (and harm) would fall squarely on [Focus].”
After defeating the POA’s request for a temporary
restraining order, Focus filed a cross-complaint. Its first three
causes of action—breach of contract, promissory estoppel, and
declaratory relief—were premised on the 500-foot poll giving
Focus the right to proceed. By the fourth cause of action, Focus
sought a declaration that the restrictions were invalid.
The case proceeded to a bench trial in January 2023. As
part of the trial, the judge conducted a site visit with counsel and
viewed some portion of Holmby-Westwood. Following the trial,
the court announced findings and a ruling for the POA on all
causes of action. Among other things, the trial court wrote: “The
10
ASC’s proceedings were reasonable and in good faith, and not
arbitrary. In fact, [the POA]’s proceedings were remarkable for
the time devoted to [the matter] and for [its] openness to
discussing the project with [Focus], including possible changes,
and for the [POA]’s openness to allowing [Focus] to poll neighbors
in the tract to determine whether they agreed with [Focus]’s
plans, subject to the ASC’s approval of the letter.”
Focus requested a statement of decision on a long list of
issues. The trial court thereafter issued a 13-page statement of
decision addressing those issues it deemed material to its
disposition.
The statement of decision concludes: “The [restrictions] are
valid and apply to [the] Property. The [house] on the Property as
built . . . does not comply with those restrictions. Focus . . . has
not prevailed on its cross-claims. [The POA] is therefore entitled
to injunctive relief, namely (1) that Focus . . . be enjoined from
construction and completion of [the house]; (2) that the [house] as
now built be removed or modified so as to comply with the
[restrictions]; and (3) that any [house] build on the Property
comply with the [restrictions].”
Judgment entered. Focus timely appealed.
DISCUSSION
Focus makes four main arguments that the trial court’s
judgment was error: First, that the POA failed to review its plan
in accordance with applicable governing documents. Second, that
the balance of hardships weighs in favor of Focus. Third, that
“the business judgment rule does not apply.” Fourth, and finally,
that the restrictions are not enforceable. We start with the last
point because how the POA sought to enforce the restrictions
matters only if they were enforceable to begin with.
11
I. Focus Fails to Show the Restrictions Are Invalid
The effect of a recorded document is a question of law.
(See Moore v. Hall (1967) 250 Cal.App.2d 25, 30; see also Werner
v. Graham (1919) 181 Cal. 174, 181 (Werner) [existence of
equitable servitude “purely a question of the construction and
consequent effect of the deed”].) We therefore exercise
independent review over Focus’s claims that the restrictions
contained in the Moss Deed, as purportedly extended by the
1975 Extension, are invalid. (See Veiseh v. Stapp (2019)
35 Cal.App.5th 1099, 1104 (Veiseh) [“ ‘In reviewing a judgment
based upon a statement of decision following a bench trial, we
review questions of law de novo.’ ”].) We need not consider the
validity of the 2002 Guidelines insofar as they purport to impose
additional restrictions on the Property as the POA conceded
below that the 2002 Guidelines are only guidelines and their case
was in no way premised on any purported breach thereof.
Focus offers two arguments that the restrictions are
invalid,1 both predicated on the rule stated in Nahrstedt v.
Lakeside Village Condominium Association (1994) 8 Cal.4th 361,
368 (Nahrstedt) that recorded restrictive covenants governing a
common interest community are enforceable unless
1 On appeal, Focus does not question whether, at the time of
the 1975 Extension, the Moss Deed’s restrictions “affect[ed]” the
Property (see 1975 Extension, ¶ 1) under Werner, supra, 181 Cal.
at pages 181 through 186. We therefore do not consider the
question and assume, for the purposes of our analysis, that they
did.
12
unreasonable.2 Focus argues they are unreasonable first because
they apply to fewer than all of the lots in tract 9200 and thus
form a “hodgepodge” of restricted and unrestricted lots; and
second, because neither the restrictions nor the POA’s governance
would pass muster under the Davis-Stirling Common Interest
Development Act (Davis-Stirling; Civ. Code,3 § 4000 et seq.).
The second argument is easily disposed of. Davis-Stirling
applies only to common interest communities—communities, like
condominium complexes, where ownership of common elements is
shared. (See §§ 4200, 4201.) It does not apply to communities
where all properties are individually owned. (§ 4201.) As there is
no evidence lot owners in Holmby-Westwood or tract 9200 are
common owners of properties outside of their individual lots,
Davis-Stirling does not apply. Focus’s attempt to define what is
“reasonable” by analogy to Davis-Sterling is nothing more than
an attempt to expand the act’s reach beyond its clearly defined
limits. We will not read a statute as regulating activity it plainly
does not. (See, e.g., Wiley v. S. Pac. Transp. Co. (1990)
220 Cal.App.3d 177, 192; Fayroyan-Mezhlumyan v. Wells Fargo
Bank, N.A. (2011) 202 Cal.App.4th 195, 205.)
As to the first, or “hodgepodge,” argument, Focus relies on
Moe v. Gier (1931) 116 Cal.App. 403 (Moe) and Terry v. James
(1977) 72 Cal.App.3d 438 (Terry) for the proposition that the
2 We need not address whether the Nahrstedt court’s
analysis properly applies to this case because Focus fails to show
the restrictions are unreasonable. Nevertheless, we note
Nahrstedt involved a common interest development, not a
voluntary association of independently owned lots like the one at
issue here.
3 Undesignated statutory references are to the Civil Code.
13
failure of some tract 9200 owners to subscribe to the
1975 Extension renders its enforcement unreasonable per se.
This is not a correct statement of the law. “Even if restrictions
are not enforceable as to every lot in an area originally covered by
an agreement they may be upheld as to a part of that area if such
part is of sufficient extent and so located that the original
purpose of the restrictions can be accomplished.” (Fairchild v.
Raines (1944) 24 Cal.2d 818, 828 (Fairchild), citing Downs v.
Kroeger (1927) 200 Cal.743, 749 (Downs).) Further, neither Moe
nor Terry involved a covenant that could run with the land under
section 1468.
In relevant part, section 1468 applies to covenants between
owners of separate parcels (like the 1975 Extension) “to do or
refrain from doing some act on [their] own land, which doing or
refraining is expressed to be for the benefit of the land of the
covenantee . . . .” (§ 1468.) Such covenants run with the land so
long as: (a) the lands affected are described in the instrument;
(b) the instrument provides successive owners are bound thereby
for the benefit of the land owned by the covenantee; (c) the
subject acts relate to the use, repair, maintenance or
improvement of the land; and (d) the instrument containing the
covenants is recorded in the proper county’s recorder’s office. (Id.,
subds. (a)–(d).)
In Terry, the only theory on which the covenant could bind
successors was as an equitable servitude. (Terry, supra,
72 Cal.App.3d at p. 442.) In Moe, after concluding the covenant
was not enforceable as an equitable servitude, the court also
considered whether it was enforceable under section 1468. It was
not, because “[t]here [wa]s no expression in the deed [that the
restriction was] ‘for the benefit of the land.’ ” (Moe, supra,
14
116 Cal.App. at p. 410.) This finding precluded application of
section 1468 under the statute’s express terms. But the Moe court
continued, in what is necessarily dicta, to conclude that even if
the restrictions had been expressed as “ ‘for the benefit of the
land,’ ” they would be not benefits but detriments because the
restrictions were varied. (Moe, at pp. 410–411.)
In contrast to the deeds in Moe, the 1975 Extension
satisfies section 1468’s requirement that it is expressly made for
the benefit of the other landowners. It is for “the benefit of each
lot . . . in [tract 9200] whose owner sign[ed] [the extension] . . . .”
Even considering Moe’s dicta, the 1975 Extension is still
distinguishable. The deeds in Moe contained no indication
whatsoever that they were part of any plan. The 1975 Extension
was an agreed plan of varied (or at least potentially varied)
restrictions. It was expressly made subject to assent by the
owners of at least 49 lots in the tract, which is fewer than all
owners. Thus, all signatories knowingly agreed they would
subject their properties to restrictions so long as 48 of their
neighbors did the same—and even if more than 30 did not.
Certainly, it is not irrational for residents to consider their
neighborhood better off if at least some critical mass of their
properties were subject to restrictions than if none were. “When
landowners express the intention to limit land use, ‘that
intention should be carried out.’ ” (Nahrstedt, supra, 8 Cal.4th at
p. 381.) It is not unreasonable to enforce restrictions here that
vary from unrestricted neighbors where the extension’s
signatories so clearly manifested their intention to accept that
outcome and that it bind their successors.
Further, while we need not know why these owners
subscribed to the 1975 Extension (cf. Nahrstedt, supra, 8 Cal.4th
15
at p. 381, citing Epstein, Notice and Freedom of Contract in the
Law of Servitudes (1982) 55 So.Cal. L.Rev. 1353, 1359), the map
of restricted and unrestricted properties in tract 9200 suggests
the restrictions are not as randomly distributed as Focus implies.
Tract 9200 abuts the busy Wilshire Boulevard. The lots
along Wilshire were never restricted. Some have been developed
as high-rise condominiums or apartments; others as a church.
Lindbrook Drive is the first street north of Wilshire in the tract
and runs parallel to Wilshire between Warner Avenue and
Holmby Avenue. Lindbrook then turns away from Wilshire as it
crosses Holmby—where the Property sits—and proceeds to
Beverly Glen Avenue.
The lots on the south side of Lindbrook between Warner
and Holmby all adjoin the unrestricted Wilshire lots. So too do
the first two lots after Holmby towards Beverly Glen (those
directly across Lindbrook from the Property). Fourteen of the
17 lots adjoining Wilshire lots, including the two across
Lindbrook from the Property, chose not to be restricted. But
every other lot on the Property’s segment of Lindbrook (i.e.,
between Holmby and Beverly Glen) agreed to the restrictions.
And so too did 10 of the 11 lots on the north side of Lindbrook
between Warner and Holmby. Put another way, a contiguous
group of 22 Lindbrook lots not adjoining a Wilshire lot agreed to
preserve continuity with their immediate neighbors so situated.
The Property lies practically in the middle of this group. The
manifest pattern of restrictions on Lindbrook belies Focus’s claim
that the 1975 Extension created an “arbitrary patch[work] of
restricted homes.”
16
In addition to arguing section 1468’s benefit requirement
was unsatisfied, Focus makes two other claims4: there was no
consideration for the 1975 Extension; and it did not satisfy
section 1468’s recordation requirement.
As to consideration, Focus notes an e-mail from Brown to
Larian stating “there were no considerations or benefits” for the
1975 Extension. Notwithstanding this evidence, the trial court
concluded there was consideration “because by entering into the
1975 Extension [signatories] obtained the promise that the other
[signatories] would also be bound by such homeowners’ original
deed restrictions.” This conclusion is undoubtedly correct.
(See Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. (1958)
160 Cal.App.2d 290, 295 [“Mutual promises constitute
consideration.”].)
As to recordation, the 1975 Extension was recorded in the
Los Angeles County Registrar-Recorder’s Office, as required by
section 1468, subdivision (d). Focus suggests a lack of evidence
that the extension “was recorded on each of the [tract 9200
signatories’] lots.” It is unclear what deficiency Focus is trying to
show. Its authorities state that the document recorded under
section 1468, subdivision (d) must appear in the Property’s chain
of title. It cites one case in which the document did not, such that
it did not appear on the buyer’s preliminary title report.
(See Reiner v. Danial (1989) 211 Cal.App.3d 682, 687.) But the
1975 Extension did appear in the preliminary title report Larian
4 Focus also observes that perhaps only 58 percent of the
homes in tract 9200 signed the 1975 Extension but does not
explain why this is material. The 1975 Extension provided it
would bind signatories once at least 49 lots accepted, which they
did.
17
received. That report said “[the restrictions in the Moss Deed]
have been modified by an instrument . . . [r]ecorded . . .
August 15, 1975 as Instrument Number 3719, of Official
Records.” Focus fails to show section 1468, subdivision (d) was
unsatisfied.
II. Focus Fails to Show the POA’s Processes and
Procedures Negated Their Enforcement Efforts
Focus argues the manner in which the POA enforced the
restrictions against it rendered such efforts invalid. It relies upon
Ironwood Owners Association IX v. Solomon (1986)
178 Cal.App.3d 766, 722 (Ironwood) for the proposition that the
POA can enforce the restrictions by injunction only if it has
“[(1)] followed its own standards and procedures prior to pursuing
such a remedy, [(2)] that those procedures were fair and
reasonable, and [(3)] that its substantive decision was made in
good faith, and is reasonable, not arbitrary or capricious.” Focus
addresses only the first and last standards and does not contend
the POA’s procedures were unfair or unreasonable. We are not
persuaded by Focus’s arguments.
As a preliminary matter, determination of the Ironwood
factors is factual. (See Ironwood, supra, 178 Cal.App.3d at
p. 772.) “ ‘We apply a substantial evidence standard of review to
the trial court’s findings of fact.’ ” (Veiseh, supra, 35 Cal.App.5th
at p. 1104.)
A. Compliance with Standards and Procedures
Focus asserts the POA failed to comply with its procedures
in three ways. First, the ASC failed to consider all relevant
factors in evaluating Focus’s plans. Second, it failed to follow the
disapproval formalities contained in the 1975 Extension. And
third, the POA’s president was not duly appointed.
18
1. Consideration of Evaluation Factors
The 1975 Extension gives the ASC substantial discretion in
evaluating a proposed construction plan. Its analysis “shall
include” consideration of the following factors: “conformity to the
deed restrictions”; “effect upon the environment”; and “harmony
of external design with the surrounding community.” But the use
of the word “include” shows these factors are nonexclusive. The
2002 Guidelines disclose additional factors the ASC may
consider, including architectural style and the “interest, welfare,
or rights of any or all property owners in [Holmby-Westwood].”
The trial court found “the evidence demonstrates that the
ACS [sic] properly considered the factors set forth in the [Moss
Deed and 1975 Extension] in declining to approve [Focus’s]
construction . . . .”
Focus contends the ASC “limit[ed] its focus solely to
[compliance with the setback restriction].” There are several
problems with this argument. First, the evidence cited is that the
restrictions were the dispositive consideration, not the only
consideration. That failure to comply with the setback restriction
was the reason approval was withheld does not mean the ASC
considered nothing else. Second, the setback restriction obviously
implicates the other mandatory factors in the 1975 Extension. A
property built 80 percent closer to the street than its neighboring
property could be considered out of harmony with the
surrounding community and detrimental to the neighborhood’s
environment. Third, the ASC’s communications with Larian
show it considered factors aside from strict conformity to the
restrictions. For example, Turner also couched the setback issue
as one of nonconformity with neighborhood character. She further
considered the proposed architectural style, reporting the ASC
19
was “generally pleased with the design of the house and only
ha[d] minor concerns about finishes.”
Focus complains the ASC “arbitrarily added an
inapplicable criterion about the ‘front yard,’ which does not exist
in the Moss Deed.” But this argument has at least two problems.
First, as already noted, the ASC’s evaluation criterion in the
1975 Extension is nonexclusive so consideration of unlisted
criteria is not prohibited. Second, the argument is purely
semantic. The Moss Deed identifies the street the house must
face (Lindbrook) and the minimum distance between the street
and the house (35 ft.). The result is a mandatory front yard with
a depth at least as great as the setback distance.
At the same time it complains the ASC added new criteria,
Focus contends the POA should have considered the results of the
500-foot poll. Paradoxically, it later argues, citing Ironwood, that
the 500-foot poll was an impermissible delegation of the ASC’s
approval role. In any event, Focus failed to conduct the 500-foot
poll in accordance with the ASC’s instructions. While the ASC’s
follow-up disclosures might have provided all information the
ASC considered relevant, it did not violate any procedure when it
disregarded the results of a poll gratuitously authorized and
improperly conducted before the disclosures were made.
2. No Signed Written Disapproval
Focus contends its plans were deemed approved under the
1975 Extension because the ASC did not send it a written
disapproval signed by four members of the committee within
45 days after it submitted them. The POA responds that the
2002 Guidelines provide that a request for variance from a deed
restriction can never be “deemed” approved. Focus does not
address this in its reply. Focus’s proposal to build a house within
20
seven feet of Lindbrook Drive is indisputably a request for a
variance from the 35-foot setback requirement. We treat Focus’s
lack of response to the POA’s argument that the guidelines
preclude “deemed” variance approvals a concession of merit.
(See Rudick v. State Board of Optometry (2019) 41 Cal.App.5th
77, 89–90 [the appellants’ “fail[ure] to respond in their reply brief
to the [respondent’s] argument” treated as concession of merit on
that point].)
3. The POA’s President Is a Nonresident
Focus notes Brown, the POA’s president and a
member of the ASC, used to live in Holmby-Westwood but does
not anymore. The POA’s articles of incorporation limit its
membership to owners or residents. Its bylaws say only members
are eligible to serve on its board. However, it also provides a new
path to membership: admission of a nonresident by a majority of
the board. As no one asserts otherwise, we assume Brown was
admitted as a member pursuant to this provision of the bylaws
and elected president of the board.
Focus contends the POA is violating corporate law by
including in its bylaws a provision at odds with its articles of
incorporation. For this proposition, it cites Civil Code
section 4205—part of Davis-Stirling—and “Corporations Code
section 5810 et seq.” The former is inapplicable for reasons
already discussed. The latter citation fails to alert us to the
provision Focus considers applicable here. Moreover, even if
Brown is ineligible to be a POA member because the bylaws are
subordinate to the articles of incorporation, Focus fails to
establish what effect such ineligibility has on the POA’s actions
in this case. (See Martine v. Heavenly Valley Limited Partnership
21
(2018) 27 Cal.App.5th 715, 728 [court not required to serve as the
appellants’ backup counsel and supply arguments for them].)
B. Validity of Substantive Decision
Focus fails to demonstrate that the ASC’s refusal to
approve its plans was made in bad faith, was unreasonable, or
was arbitrary or capricious. The trial court expressly found there
was no evidence the POA enforced the setback restrictions
arbitrarily. Substantial evidence supports this conclusion.
There is no dispute the Property violates its setback
restrictions by distances ranging from five to 28 feet. By the
terms of the 1975 Extension, the ASC was never bound to exempt
it from those restrictions. Rather it had “discretion” to do so only
if it “f[ound] . . . there [we]re compelling reasons for such a
variance.”
Focus describes what it considers compelling reasons the
ASC should have granted it a variance. But what the ASC “finds
. . . compelling” is inherently subject to the discretion of the ASC.
Turner explained the fundamental problem with Focus violating
the setback restrictions: “[The house] sticks out like a sore thumb
when you’re driving down the street, so it does impact the feel of
the neighborhood.” She continued, “it sticks out because the
property is at an apex. It comes to a very peculiar kind of corner,
and it comes very close to the curb.” The trial judge had the
opportunity to evaluate those statements when he viewed the
Property himself and included his observations about the
Property’s siting in concluding the ASC’s enforcement was not
arbitrary.
While Focus does not like the ASC’s decision—and
reasonable people could disagree as to its wisdom—the evidence
shows it took Focus’s requests seriously, sought to educate Larian
22
on the restrictions applicable to the Property, and expressed a
willingness to be flexible in balancing Focus’s interests with those
of the neighbors. ASC members were responsive to Larian’s
requests for information, prompt in their communications with
him, gave him ample opportunity to present his plans and
consider alternatives, and even offered an avenue for approval
that did not require a change in the proposed nonconforming
setbacks. Nothing about this indicates arbitrariness, caprice, or
bad faith.
In the face of the ASC telling him otherwise, Larian made
the ill-considered decision that his conduct of the 500-foot poll
was good enough and proceeded to erect a nonconforming
structure. The implicit message was clear: Larian did not intend
to play by the ASC’s rules. This necessarily changed the ASC’s
posture towards Larian. After that point, the ASC’s credibility
and future effectiveness was at stake. As Turner explained to
Larian in an August 26, 2020 e-mail, “the ASC is responsible to
all [owners of restricted properties.] If a precedent is set that
[restrictions] are ignored, it puts every home at risk . . . .”
The evidence permits only one conclusion: the POA acted
within the bounds of reason in seeking to enjoin Focus’s
nonconforming construction. In so concluding, it is unnecessary
for us to consider application of the business judgment rule.
III. Balance of Hardships
“ ‘The grant or denial of a permanent injunction rests
within the trial court’s sound discretion and will not be disturbed
on appeal absent a showing of a clear abuse of discretion.’
[Citations.] The burden is on the party challenging the ruling to
demonstrate such abuse.” (Grail Semiconductor, Inc. v.
23
Mitsubishi Electric & Electronics USA, Inc. (2014)
225 Cal.App.4th 786, 801.)
Focus argues the balance of harms favor it as a matter of
law because “[t]here was no evidence of pecuniary harm to [the
POA],” whereas Focus “would lose millions if ordered to demolish
the Property.”
The trial court relied on Morgan v. Veach (1943)
59 Cal.App.2d 682, 691 (Morgan) for the proposition that
“ ‘[w]here equitable relief is sought, proof of actual or substantial
injury is not essential, the establishment of a violation of a
uniform building restriction being all that is necessary to entitle
a complaining owner to relief . . . .’ ”
Focus argues Morgan is distinguishable. First, it notes
Morgan was a direct suit between homeowners, not one involving
a property owners’ association. But the 1975 Extension
eliminates the distinction between the two insofar as standing to
seek equitable relief goes.
Second, Focus argues the “ ‘uniform building restriction’ ”
requirement of Morgan is unsatisfied. (Morgan, supra,
59 Cal.App.2d at p. 691.) As already noted, that “requirement” is
not absolute and must be determined based on the facts and
circumstances of the restricted area.
Fairchild, supra, 24 Cal.2d 818, is a decision of our
Supreme Court issued the year after Morgan. Fairchild
addressed the enforceability of restrictive covenants5 in a tract
5 The restrictive covenants at issue in Fairchild were racially
restrictive covenants, which were at the time considered legal as
between private parties, but which have long since been
invalidated both at the federal and the state level. (Shelley v.
24
where approximately half the lots were not restricted. Fairchild
recognized “ ‘courts will not enforce restrictive covenants by
injunction in a case where, by reason of a change in the character
of the surrounding neighborhood, not resulting from a breach of
the covenants, it would be oppressive and inequitable to give the
restriction effect, as where the enforcement of the covenant would
have no other result than to harass or injure the defendant,
without benefitting the plaintiff.’ ” (Id. at p. 826, italics added.)
The question in Fairchild was therefore “whether the original
purpose of the restrictive covenant c[ould] still be realized by the
owners of the lots [in a subsection of the tract].” (Id. at p. 828.)
The court held “[t]he fact that all the lots in the tract are not
subject to the covenant is not conclusive of the issue. Even if
restrictions are not enforceable as to every lot in an area
originally covered by an agreement they may be upheld as to a
part of that area if such part is of sufficient extent and so located
that the original purpose of the restrictions can be accomplished.”
(Ibid., italics added.)6
Here, the trial court found the restrictions allow the POA
“to preserve the appearance and compatibility of the properties in
Tract 9200 that are subject to the 1975 Extension” and were
presently being enforced for that purpose. We again note the
Kraemer (1948) 334 U.S. 1, 20–21; Coleman v. Stewart (1949)
33 Cal.2d 703.) We rely on no part of the Fairchild case relating
to the repugnant notions about racial covenants expressed
therein.
6 For this last proposition, the Fairchild court cited Downs,
supra, 200 Cal. at page 749, a building (as opposed to racial)
restriction case, giving it indisputable currency in our context.
(Fairchild, supra, 24 Cal.2d at p. 828.)
25
Property sits practically in the middle of a group of 22 lots—
including an unbroken line of 17 lots to the Property’s east and
west on the north side of Lindbrook Drive—that agreed to be
restricted. Under the principle of Downs stated in Fairchild,
these facts unquestionably support the trial court’s exercise of
discretion to enjoin Focus’s construction.
IV. Focus’s Remaining Arguments Do Not Merit
Consideration
In its opening brief, Focus states, in a footnote, that the
trial court’s judgment “includes a wall that was extraneous to the
pleadings.” The issue is not revisited in argument. It is forfeited.
(See Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236,
1260, fn. 10 [argument raised in footnote without analysis or
discussion is waived].) Similarly, we disregard Focus’s other
arguments not addressed in the argument section of its opening
brief under separate headings as improperly presented and
without merit. (See United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 153.)
Finally, in its reply brief, Focus argues for the first time on
appeal that it did not need to add other lot owners as
indispensable parties in its cross-complaint. Focus’s opening brief
contains no argument that the trial court erred in entering
judgment for the POA on the causes of action in Focus’s cross-
complaint. Accordingly, all related issues are forfeited.
(See Golden Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 555 [issues not raised in opening brief are
forfeited or abandoned].)
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DISPOSITION
The judgment is affirmed. The POA is entitled to its costs
on appeal.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.
27