Filed 1/14/19 (unmodified opinion attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

FELIPA RICHLAND EITH et al.,

Plaintiffs and Appellants,

v.

JEFFREY KETELHUT et al.,

 Defendants and Appellants;

LOS ROBLES HILLS ESTATES

HOMEOWNERS ASSOCIATION

et al.,

Defendants and Respondents.

2d Civil No. B272028

(Super. Ct. No. 56-2011-00403140-

CU-OR-VTA)

(Ventura County)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on December 17, 2018, 

be modified as follows:

1. The certified portion of the opinion is expanded so that the 

double-brackets (“[[”), reflecting portions of the opinion to be 

deleted from publication, are inserted at page 17 before the 

heading “Plaintiffs Were Not Denied their Right to a Jury Trial” 

(“[[Plaintiffs Were Not Denied ....”). The double brackets (“[[”) on 

page 13 are deleted.
2. On page 4, line 2, the following sentence is inserted after the 

sentence ending “as a matter of law, it is not a prohibited 

business or commercial use”:

In addition, we reject plaintiffs’ claim that the judgment is 

void because the trial judge did not disclose contributions 

made by defendants’ counsel to his campaign for re-election 

to the superior court.

3. On page 14, on line 5 in the second full paragraph, the 

following is inserted after the sentence ending “had not disclosed 

them to plaintiffs”:

Eith alleged, “Recent inspection of recorded and filed 

election documents (Form 460) establishes that during the 

pendency of the instant action Judge Walsh solicited, 

accepted and kept secret from Plaintiffs and plaintiffs’ 

counsel, monetary contributions to his campaign from 

defense counsel [firm, partners, or staff attorneys] in the

amount of $2,600.00 . . . .” (Brackets in original.)

4. On page 15, on line 3 in the first paragraph under the heading 

“B. Analysis,” the following sentence is inserted after the 

sentence ending “disclose contributions made by defendants’ 

counsel”:

If Judge Walsh were so disqualified, the judgment would be 

void.

5. At the end of the first paragraph on page 16, after the 

sentence ending “would be able to be impartial,” the following is 

inserted: (Italics added.)

There is no change in the judgment.
Filed 12/17/18 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

FELIPA RICHLAND EITH et al.,

Plaintiffs and Appellants,

v.

JEFFREY KETELHUT et al.,

 Defendants and Appellants;

LOS ROBLES HILLS ESTATES

HOMEOWNERS ASSOCIATION

et al.,

Defendants and Respondents.

2d Civil No. B272028

(Super. Ct. No. 56-2011-00403140-

CU-OR-VTA)

(Ventura County)

In Lamden v. La Jolla Shores Clubdominium Homeowners 

Assn. (1999) 21 Cal.4th 249 (Lamden), our Supreme Court 

cautioned courts to give judicial deference to certain discretionary 

decisions of duly constituted homeowners association boards. 

The judicial deference rule does not encompass legal questions

that may involve the interpretation of the covenants, conditions, 

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, 

this opinion is certified for partial publication. The portions of 

this opinion to be deleted from publication are identified as those 

portions between double brackets, e.g., [[/]].

 
and restrictions (CC&Rs) of a homeowners association. Courts 

decide legal questions.

Here, homeowners cultivated a vineyard for the purpose of 

making wine to be sold to the public. The CC&Rs did not 

prohibit the cultivation of a vineyard for this purpose, but they 

did prohibit “any business or commercial activity.” The operation 

of the vineyard may have constituted “business or commercial 

activity” in the literal sense of that term. But a literal 

interpretation in the present case would elevate form over 

substance and lead to absurd results. (See SDC/Pullman 

Partners v. Tolo Inc. (1997) 60 Cal.App.4th 37, 46 [“literal

language of a contract does not control if it leads to absurdity”].) 

Because the wine was made, bottled, and sold commercially 

offsite, and the activity at the vineyard did not affect the 

residential character of the community, we conclude there was no 

business or commercial activity within the meaning of the 

CC&Rs. The homeowners association board acted within its 

discretion in allowing the continued operation of the vineyard, 

and its decision is entitled to judicial deference. 

This appeal is from a judgment and a postjudgment award 

of attorney fees and costs in favor of Jeffrey Ketelhut and 

Marcella Ketelhut (the Ketelhuts) and other parties. The 

Ketelhuts cross-appeal from the award of attorney fees and costs. 

In the appeal from the judgment, the central issue is whether the 

Ketelhuts, homeowners in a residential common interest 

development, violated a restrictive covenant requiring that they 

not use their property for any business or commercial activity. 

The Ketelhuts operated a vineyard on their property. After 

harvesting the grapes, they sent them to a winery to be made into 

wine. They sold the wine over the Internet.

2
Other homeowners objected to the operation of what they 

considered to be a commercial vineyard in violation of the 

prohibition against any business or commercial activity. The 

Board of Directors (Board) of the homeowners association - Los 

Robles Hills Estates Homeowners Association (HOA) - decided 

that the vineyard was not being used for business or commercial 

activity.

Plaintiffs/homeowners Felipa Eith and Jeffrey Eith (the 

Eiths), Thomasine Mitchell and John Mitchell (the Mitchells), 

Stacy Wasserman, Philip Chang, Morrey Wasserman, and Eileen 

Gabler (hereafter collectively referred to as “plaintiffs”) brought 

an action against the Ketelhuts, HOA, and Board members

Michael Daily, Jeanne Yen, and Frank Niesner (hereafter 

collectively referred to as “defendants”). The court conducted a 

lengthy bifurcated trial on the eighth and ninth causes of action. 

The eighth cause of action concerned whether the operation of the 

vineyard was a prohibited business or commercial activity. The 

ninth cause of action sought to quiet title to a common area. 

The trial court did not decide whether the operation of the 

vineyard was a prohibited business or commercial activity. 

Instead, it invoked the judicial deference rule of Lamden, supra, 

21 Cal.4th 249. Pursuant to this rule, the trial court deferred to 

the Board’s decision that the vineyard was not being used for 

business or commercial activity. The court entered judgment in 

favor of defendants on both the eighth and ninth causes of action. 

The resolution of these two causes of action rendered the 

remaining causes of action moot.

The trial court correctly applied the Lamden judicial 

deference rule to the Board’s decision that the Ketelhuts’ 

operation of the vineyard was not a prohibited business or 

3
commercial use. We further conclude that, as a matter of law, it 

is not a prohibited business or commercial use. We affirm the 

judgment as well as the postjudgment award of attorney fees and 

costs.

Factual Background

In 1966, the Janss Corporation (Janss) developed a 28-lot 

residential subdivision (Los Robles Hills Estates) in the City of 

Thousand Oaks. The subdivision is a common interest 

development subject to the Davis-Sterling Common Interest 

Development Act. (Civ. Code, § 4000 et seq.) “Common interest 

developments are required to be managed by a homeowners

association [citation], defined as ‘a nonprofit corporation or 

unincorporated association created for the purpose of managing a 

common interest development’ [citation], which homeowners are 

generally mandated to join [citation].” (Villa De Las Palmas 

Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81.)

Janss created HOA to manage the development. It deeded 

to HOA an 18.56-acre parcel that the trial court and parties 

referred to as a “common area.” The deed provides, “This 

conveyance is made on condition that said property shall be used 

solely for purposes of recreation or decoration or both, and in the 

event that said property is otherwise used, it shall automatically 

revert to grantor herein.” 

The development is subject to a recorded declaration of

CC&Rs. Paragraph 1.01 of the CC&Rs provides, “No lot shall be 

used for any purpose (including any business or commercial 

activity) other than for the residence of one family and its 

domestic servants . . . .” Subparagraph 3 of paragraph 2.03 

provides that “[f]or good cause shown . . . deviations from the 

applicable deed restrictions” may be allowed “to avoid 

4
unnecessary hardships or expense, but no deviation shall be 

allowed to authorize a business or commercial use.” Paragraph

5.07 provides, “Every person acquiring a lot . . . covenants to 

observe, perform and be bound by this Declaration of 

Restrictions.” 

In June 2003, the Ketelhuts purchased in the development

a 1.75-acre lot on Pinecrest Drive (the Property). In 2005, they 

planted a vineyard consisting of 600 plants. The plants extended 

“just under .4 acres” into the 18.56-acre common area. In their 

brief, defendants acknowledge, “Unbeknownst to the Ketelhuts 

and [HOA], some of the grape plants encroached on the [common 

area].” In 2011, when HOA learned of the encroachment, its 

counsel wrote a letter to the Ketelhuts’ counsel “demanding that 

[the Ketelhuts] immediately remove the vines from the common 

area, as well as any other items that may be located upon the 

Association’s common area.”

Before planting the grape vines, the Ketelhuts submitted a 

landscape plan (Exhibit 244) to the Board. It was approved by 

the Board’s Architectural Committee (the Committee). The plan 

divided the Property into three separate vineyards. One would 

grow grapes for Cabernet Sauvignon, the second for Sangiovese, 

and the third for Merlot. The plan did not indicate the number of 

grape vines that would be planted. The Ketelhuts did not inform 

the Board or the Committee that the grapes grown on the 

Property would be used to make wine that would be offered for 

sale to the public. 

Pranas Raulinaitis, who served on the Committee in 2005, 

testified that the Committee members “viewed the [vineyard] as 

an amazing [aesthetic] enhancement to the neighborhood.” It 

5
“never entered into [his] mind” that “the vineyard was being 

planted for commercial sale of wine to the public.” 

The first harvest was in 2008. At that time, Jeffrey 

Ketelhut “harvested the grapes . . . with the intention of bottling 

them for sale.” He “commenc[ed the] wine business in 2009.” 

Jeffrey Ketelhut admitted that “the sale[] of wine is a business” 

and that the vineyard “operates like a business.” But he 

characterized the vineyard “as a hobby where I do it in my spare 

time.” “[M]y purpose in getting involved wasn’t to generate a 

profit and this become a livelihood. This was a hobby. I enjoy 

gardening . . . . [T]hat was therapy for me.” The Ketelhuts never 

determined whether, excluding attorney fees, the vineyard 

generated a profit. Including attorney fees, it has not generated 

a profit in any year. 

Although the Ketelhuts’ tax returns were not produced, 

Jeffrey Ketelhut testified that he had filed Internal Revenue 

Service Schedule C (Form 1040) for the vineyard. Pursuant to 

Evidence Code sections 459 and 452, subdivision (h), we take 

judicial notice that Schedule C is entitled “Profit or Loss from 

Business (Sole Proprietor).” We also take judicial notice that, 

since 2009, page 1 of the instructions for Schedule C has 

provided, “Use [Schedule C (Form 1040)] to report income or loss

from a business you operated or a profession you practiced as a 

sole proprietor. An activity qualifies as a business if: your 

primary purpose for engaging in the activity is for income or 

profit, and you are involved in the activity with continuity and 

regularity. For example, a sporadic activity or a hobby does not 

qualify as a business.” (Italics added.)

In 2009, the Ketelhuts filed in Ventura County a fictitious 

business name statement showing that they were doing business 

6
at the Property as “Los Robles Hills Winery” and “Puerta del 

Cielo Vineyards.” They applied and obtained a “Type 17 and 

Type 20 license [from the Department of Alcoholic Beverage 

Control], which [permits] retail and wholesale [sales] over the 

internet only.” They also obtained “a Thousand Oaks business 

license.” The licenses showed that the business was located at

the Property. But in 2012, the location of the business was 

changed to a Camarillo address. 

The Ketelhuts began selling wine in May 2010. With one 

exception, they have sold only wine made from grapes grown on 

the Property. The exception occurred in 2011, when they made 

wine from sauvignon blanc grapes that they had purchased. In 

2015, the Ketelhuts harvested 2,000 pounds of grapes. They 

invited family, friends, and neighbors to participate in the 

harvesting. Jeffrey Ketelhut testified, “[I]t took us an hour-anda-half to pull down all the grapes.” 

After the grapes are harvested, they are transported to 

“Camarillo Custom Crush [in Camarillo], where all the 

winemaking takes place.” Camarillo Custom Crush puts the 

wine into bottles that bear the Ketelhuts’ personal label. The 

Ketelhuts do not store wine on the Property. They have a storage 

facility in Malibu. They do not ship bottles of wine from the 

Property. 

“In a typical year,” the Ketelhuts are “fortunate” to produce 

two barrels of wine. “[A] single barrel can hold up to 30 cases.” 

Each case contains 12 bottles. Thus, the maximum typical

annual production is 720 bottles of wine. But in 2009, the 

Ketelhuts “produced 132 cases,” which is 1,584 bottles of wine. 

At the time of trial in November 2015, the wine production 

was “dwindling” because they had “los[t] vines [due] to drought.” 

7
The original 600 plants had been reduced to about 400. Jeffrey 

Ketelhut estimated that production for 2014 and 2015 would be 

50 cases per year. The wine for these years was still being stored 

in barrels. 

The Ketelhuts retain ownership of the bottled wine. They 

advertise on Facebook, Twitter, their personal web site, “and 

through [their] wholesale accounts.” The logo “Los Robles Hills

Winery” and their website address are displayed on the exterior 

of their truck, which they park in the driveway of the Property.

“[T]hey keep the truck covered” while it is on the Property. 

The Ketelhuts “sold wine to a number of restaurants and 

hotels in the local area.” But because of plaintiffs’ lawsuit, they

“let those [local sales] lapse.” At the time of trial, they were “still 

offer[ing] retail sales and wholesale sales,” but were probably 

giving “at least 60 percent” of their wine to “charity.” For the last

two years, their retail sales have been “zero.” Their wines appear 

on the menu at “a few” restaurants. 

Exhibit No. 35 contains copies of pages from the Ketelhuts’ 

web site. The pages are dated May 22, 2014. The wines for sale 

range in price from $27 to $42 per bottle. 

In January 2011, the Ventura County Star published an 

article about the Ketelhuts’ “winery.” The article said that they 

“were hosting wine tastings by appointment at [their] home 

tasting room.” In March 2011, the Department of Alcoholic 

Beverage Control informed the Ketelhuts that someone had 

complained about the wine tastings. The Ketelhuts denied 

hosting wine tastings on the Property. 

In its statement of decision, the trial court found: “There 

was . . . no retail traffic to the premises or tasting room on the 

premises at [the Property]. What was accomplished [there] was 

8
cultivation of the grapes, picking of the grapes, and 

transportation of the grapes to Camarillo.” 

Some homeowners complained about the vineyard. In 

August 2011 counsel for plaintiffs Felipa Eith and Stacy 

Wasserman wrote a letter to the Ketelhuts “indicating that the 

commercial vineyard was a violation of the CC&Rs and that 

[they] should stop that aspect of [their] business.” The letter did 

not demand that the Ketelhuts stop growing grapes on the 

Property. It demanded that they “[c]ease operating a commercial 

vineyard.” The letter also demanded that the Ketelhuts 

“[r]emove all encroaching plants, irrigation and any other 

vineyard materials . . . from the . . . common area.” 

The Board, which consisted of five homeowners, 

investigated the Ketelhuts’ operation of the vineyard. It 

interviewed other homeowners. In June 2011, it conducted a 

meeting that was open to all of the homeowners. The Ketelhuts

appeared and answered questions. After the meeting, three of 

the five board members - defendants Daily, Yen, and Niesner -

concluded that the Ketelhuts were not using the Property for a 

nonresidential purpose in violation of paragraph 1.01 of the 

CC&Rs. They found that there was no prohibited business or 

commercial activity on the Property. 

Board member Daily considered the vineyard to be 

“landscaping” rather than a business. He explained: “They were 

growing grape vines just like I grow fruit trees and Mr. Krupnick 

[a homeowner] grows avocado trees, and people grow grass in 

their yard. It was landscape.” “[T]herefore I wasn’t going to, as a 

board member, try to restrict them from growing grapes. Like I 

wouldn’t restrict anybody else from growing fruit or whatever.” 

“Their growing grapes was part of their landscape plan.” 

9
On the other hand, Daily understood that “the growing 

phase of their winery was part of the business.” “You have to 

have grapes in order to make wine.” Daily continued: “I believe 

that aspect to their business [growing grapes] is acceptable 

because it’s their landscape.” “The growing of grapes is certainly 

not something prohibited by the CC&R’S and if somebody takes 

those grapes in a very limited way without impact on the 

community, then I don’t really care what they do with them. 

They can make jelly and sell it. That’s fine with me.” “I 

considered that [the Ketelhuts] were going to do something that 

was not going to have a negative impact on the community and 

therefore it was allowable.” 

Daily did not “know how to define the difference between 

business and commercial” activity. He said: “[W]hen I think of 

commercial activity, I think of something, you know, in a 

building, you know, off site. That’s what I think of as commercial 

activity.” 

Board member Yen testified that “commercial activity” 

within the meaning of the CC&Rs “is something that would cause 

a stress in the community, whether it be traffic, whether it be 

individuals, that it’s something that disrupts our quality in our 

community and impacts your neighbors. That’s commercial 

activity.” Yen did “not see picking grapes to go to Custom Crush 

[a]s impairing any activities in the community or in any way 

creating blockage to the community or a problem for the 

community.” 

Procedural Background

Plaintiffs filed a complaint consisting of nine causes of 

action. The trial court bifurcated the eighth and ninth causes of 

10
action and tried them first. The trial began in July 2015 and 

ended in November 2015. 

The eighth cause of action is against HOA and the 

Ketelhuts. It seeks declaratory and injunctive relief. It requests

“a judicial determination and decree that the CC&Rs and Grant 

Deed prohibit” the Ketelhuts from (1) operating their “Business”

and “commercial enterprise,” including the vineyard, on the 

Property and the common area, and (2) encroaching on the 

common area. The eighth cause of action also requests the 

issuance of a permanent injunction prohibiting the Ketelhuts

from operating their business on the Property and encroaching on 

the common area. 

The ninth cause of action is against all defendants. It seeks

to quiet title to the common area. It claims that each of the 28 lot

owners has an undivided 1/28th ownership interest in the 

common area and is “entitled to the non-exclusive possession” of 

that area. The ninth cause of action sought a judicial declaration 

that HOA has “no estate, right, title or interest” in the common 

area. 

The remaining seven causes of action are for nuisance; 

trespass; breach of the CC&Rs; breach of HOA’s fiduciary duty; 

breach of fiduciary duty by Board members; and “willful, wanton 

misfeasance and gross negligence.” In its statement of decision,

the trial court said it had ordered that “[t]he remaining causes of 

action, for which a jury had been demanded, would be set for trial 

as may be necessary following determination of the Declaratory 

Relief and Quiet Title causes of actions.” 

Prior to trial on the eighth and ninth causes of action, all 

plaintiffs except Felipa Eith dismissed the entire action against 

HOA and Board members. 

11
Statement of Decision

On the eighth cause of action for declaratory and injunctive 

relief, in its statement of decision, the trial court said that it was 

“faced with . . . whether or not to exercise its independent 

analysis of whether or not what the Ketelhuts were doing is a 

business or commercial activity, or to determine if the HOA had 

the discretionary authority to allow the Ketelhuts to do what 

they did under what is commonly known as the business 

judgment rule.” The court applied the “deferential business 

judgment standard adopted by [Lamden, supra, 21 Cal.4th 249].” 

The trial court ruled: “The Court finds here that the 

defendant HOA and its individual directors acted in good faith in 

addressing the activities of the defendants Ketelhut, and that 

this decision should not be re-examined within the context of this 

litigation. . . . As noted in Beehan v. Lido Isle (1977) 70 

Cal.App.3d 858 @ 865, ‘The board of directors may make incorrect 

decisions, as well as correct ones, so long as it is faithful to the 

corporation and uses its best judgment.’ . . . The Court finds that 

this board of directors used it[s] best judgment and acted in a 

reasonable manner under the circumstances presented to it. As 

such, the Court does not grant the relief that plaintiffs seek, but 

finds in favor of the defendants on the cause of action for 

declaratory relief.” (Italics added.)

On the ninth cause of action to quiet title to the common 

area, the trial court found that the area was deeded to HOA in 

1966. “[N]o fractional interest in the property was deeded to any 

homeowners. Since that time, there have been no other 

documents, recorded or otherwise, that purport[] to grant to the 

homeowners the 1/28 fractional interest that they are seeking in 

12
this action.” Therefore, “title to the 18.5 acre common area is

confirmed and quieted to [HOA].” 

Judgment

On the eighth and ninth causes of action, the trial court 

entered judgment in favor of defendants. The judgment does not 

mention the remaining seven causes of action. In its statement of 

decision, the trial court said, “The rulings here made moot 

plaintiffs[’] remaining causes of action. The case is therefore not 

set for further trial on those issues.” 

Thus, the judgment disposed of all nine causes of action 

and is appealable under the one final judgment rule of Code of 

Civil Procedure section 904.1, subdivision (a). “Judgments that 

leave nothing to be decided between one or more parties and their 

adversaries . . . have the finality required by section 904.1, 

subdivision (a). A judgment that disposes of fewer than all of the 

causes of action framed by the pleadings, however, is necessarily 

‘interlocutory’ (Code Civ. Proc., § 904.1, subd. (a)), and not yet 

final, as to any parties between whom another cause of action 

remains pending.” (Morehart v. County of Santa Barbara (1994) 

7 Cal.4th 725, 741.)

[[PLAINTIFFS’ APPEAL

The Judgment Is Not Void Because of the Trial 

Judge’s Alleged Disqualification

A. Factual and Procedural Background

The complaint was filed on August 31, 2011. The case was 

assigned to Judge Henry J. Walsh. 

After a contested judicial election, Judge Walsh was 

reelected in 2012. On February 10, 2016, the Commission on 

Judicial Performance admonished Judge Walsh for failing to 

disclose contributions made to his 2012 campaign by attorneys 

13
who had appeared before him after the election. The Commission 

noted, “In 2010, effective January 1, 2011, subdivision (a)(9)(C) 

was added to Code of Civil Procedure section 170.1 to require 

judges to disclose campaign contributions of $100 or more.” 

On the same day that Judge Walsh was admonished, he 

signed the judgment in the instant case.1 The next day, plaintiff

Felipa Eith filed a request for a stay of all further action by Judge 

Walsh pending a hearing on a not yet filed motion to disqualify 

him. 

On March 2, 2016, Felipa Eith filed a motion to disqualify 

Judge Walsh for cause pursuant to Code of Civil Procedure 

section 170.1. The ground for the motion was that he had 

received campaign contributions from defendants’ counsel and 

had not disclosed them to plaintiffs. A minute order entered nine 

days later on March 11, 2016, states: “Without conceding the 

merit of allegations of prejudice made by Ms. Eith, the court 

recuses itself from the case, and refers it to the supervising civil 

judge for re-assignment.”

Plaintiffs filed a motion for a new trial. They argued that 

Judge Walsh’s failure to disclose the campaign contributions 

denied them their right to a fair trial. Plaintiffs claimed that, if 

1 The Eiths “posit that the 2/10/16 handwritten date 

appearing adjacent [to] the signature line [on the judgment] is 

suspect” and “therefore unreliable.” The Eiths contend that the 

handwritten date “was likely backdated.” (Capitalization and 

bold omitted.) We reject the contention because it is based on 

speculation. There is a “presumption that judicial duty is 

properly performed.” (People v. Coddington (2000) 23 Cal.4th 

529, 644, overruled on another ground in Price v. Superior Court

(2001) 25 Cal.4th 1046, 1069, fn. 13.) The Eiths have not 

overcome this presumption.

14

 
Judge Walsh had made a timely disclosure, they “would certainly 

have sought his disqualification in 2012 to preclude the 

possibility that he would preside at trial.” 

Judge John Nho Trong Nguyen denied the motion for a new 

trial. He ruled, “When the facts are viewed as a whole they show 

that no person aware of them might reasonably entertain a doubt 

that Judge Walsh would be able to be impartial.” 

B. Analysis

Plaintiffs argue that the judgment is void because Judge 

Walsh was disqualified years before the trial when he failed to 

disclose contributions made by defendants’ counsel. In Christie v. 

City of El Centro (2006) 135 Cal.App.4th 767, 776, the court 

“conclude[d] that because [the trial judge] was disqualified at the 

time he granted the City's motion for nonsuit, that ruling was 

null and void and must be vacated regardless of a showing of 

prejudice.” The court rejected the City’s claim “that the grant of 

nonsuit need not be overturned because [the judge] was not 

disqualified until later” when a motion to disqualify him was 

granted: “[D]isqualification occurs when the facts creating 

disqualification arise, not when disqualification is established. 

[Citations.] The acts of a judge subject to disqualification are 

void or, according to some authorities, voidable. [Citations.] 

Relief is available to a party who, with due diligence, discovers 

the grounds for disqualification only after judgment is entered or 

appeal filed. [Citations.] Although a party has an obligation to 

act diligently, he or she is not required to launch a search to 

discover information that a judicial officer should have disclosed. 

[Citations.]” (Id. at pp. 776-777.)

The relevant statute is Code of Civil Procedure section 

170.1, subdivision (a)(9), which provides: “A judge shall be 

15
disqualified” if: “(A) The judge has received a contribution in 

excess of one thousand five hundred dollars ($1500) from a party 

or lawyer in the proceeding, and either of the following applies: 

[¶] (i) The contribution was received in support of the judge's last 

election, if the last election was within the last six years. [¶] (ii) 

The contribution was received in anticipation of an upcoming 

election. [¶] (B) Notwithstanding subparagraph (A), the judge 

shall be disqualified based on a contribution of a lesser amount if 

subparagraph (A) of paragraph (6) applies.” (Italics added.) 

Subparagraph (A) of paragraph (6) provides that a judge shall be 

disqualified if “[f]or any reason: [¶] (i) The judge believes his or 

her recusal would further the interests of justice. [¶] (ii) The 

judge believes there is a substantial doubt as to his or her 

capacity to be impartial. [¶] (iii) A person aware of the facts 

might reasonably entertain a doubt that the judge would be able 

to be impartial.”

The California Supreme Court Committee on Judicial 

Ethics Opinions (CJEO) issued an opinion on mandatory 

disqualification based on a contribution of more than $1,500: 

CJEO Formal Opinion 2013-003 

(http://www.judicialethicsopinions.ca.gov/wpcontent/uploads/cjeo_ formal_opinion_2013-003.pdf). CJEO 

concluded, and we agree, that the $1,500 disqualification 

threshhold “applies to the individual lawyer appearing in the 

matter.” (Id. at p. 11.) “[T]he Legislature did not intend the 

$1,500 threshold for disqualification to apply to aggregated 

contributions from multiple individuals from the same law firm, 

nor to all individuals practicing law in a contributing law firm. A 

judge receiving such contributions however, is also required to 

make a determination as to whether disqualification is called for 

16
under section 170.1, subdivision (a)(6)[A](iii) and [(a)](9)(B).” 

(Ibid.) “[M]andatory disqualification for individual attorney 

contributions over the $1,500 threshold, together with 

discretionary disqualification for aggregated and law firm 

contributions, sufficiently ensures the public trust in an 

impartial and honorable judiciary.” (Ibid.)

In their opening briefs, plaintiffs list the contributions of all 

of the lawyers who allegedly represented defendants during the 

five years of litigation. No lawyer contributed more than $1,500 

to Judge Walsh’s campaign. Thus, the mandatory

disqualification provision is inapplicable. (Code Civ. Proc., 

§ 170.1, subd. (a)(9)(A).)

Plaintiffs have failed to show that Judge Walsh was 

disqualified because “[a] person aware of the facts might 

reasonably entertain a doubt that [he] would be able to be 

impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) Thus, 

we reject plaintiffs’ claim that Judge Nguyen abused his 

discretion in denying their motion for a new trial. (See Garcia v. 

Rehrig International, Inc. (2002) 99 Cal.App.4th 869, 874 

[“ ‘ “ ‘The determination of a motion for a new trial rests so 

completely within the court's discretion that its action will not be 

disturbed unless a manifest and unmistakable abuse of discretion 

clearly appears’ ” ’ ”]; Boyle v. CertainTeed Corp. (2006) 137 

Cal.App.4th 645, 649-650 [“an appealed judgment is presumed 

correct, and plaintiff bears the burden of overcoming the 

presumption of correctness”].)

Plaintiffs Were Not Denied Their Right to a Jury Trial

Plaintiffs argue that the trial court’s bifurcation of the 

eighth cause of action denied them their right to a jury trial on 

the legal issue of whether the Ketelhuts were using the Property

17
for a business or commercial purpose in violation of the CC&Rs. 

“The issue of whether [plaintiffs were] ‘constitutionally entitled to 

a jury trial . . . is a pure question of law that we review de novo.’ 

[Citations.]” (Entin v. Superior Court (2012) 208 Cal.App.4th 

770, 776.)

“As a general proposition, ‘[T]he jury trial is a matter of 

right in a civil action at law, but not in equity.’ [Citations.] [¶] 

. . . ‘ “If the action has to deal with ordinary common-law rights 

cognizable in courts of law, it is to that extent an action at law. 

In determining whether the action was one triable by a jury at 

common law, the court is not bound by the form of the action but 

rather by the nature of the rights involved and the facts of the 

particular case -- the gist of the action. A jury trial must be 

granted where the gist of the action is legal, where the action is 

in reality cognizable at law.” ’ [Citation.] On the other hand, if 

the action is essentially one in equity and the relief sought 

‘depends upon the application of equitable doctrines,’ the parties 

are not entitled to a jury trial. [Citations.]” (C & K Engineering

Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8-9.)

The gist of the eighth cause of action is the request for “a 

permanent injunction compelling [the Ketelhuts] . . . from 

encroaching on the Common Area . . . and from conducting the 

Subject Business [a commercial vineyard] on the Subject Lot in 

violation of the restrictions set forth in the [CC&Rs].” Such relief 

is available only in equity. “A permanent injunction is an 

equitable remedy for certain torts or wrongful acts of a defendant 

where a damage remedy is inadequate.” (Art Movers, Inc. v. Ni 

West, Inc. (1992) 3 Cal.App.4th 640, 646.)

Thus, the bifurcation of the eighth cause of action and the 

trial of that action by the court did not deny plaintiffs their right 

18
to a jury trial. “It is well established that, in a case involving 

both legal and equitable issues, the trial court may proceed to try 

the equitable issues first, without a jury . . . , and that if the 

court's determination of those issues is also dispositive of the 

legal issues, nothing further remains to be tried by a jury. 

[Citations.]” (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 

Cal.3d 665, 671.)

Trial Court’s Orders Relieving Original Counsel from Further 

Representation and Denying Request for a Continuance 

Attorney Michael T. Stoller originally represented plaintiffs 

Felipa Eith, Stacy Wasserman, Philip Chang, and the Mitchells. 

After the trial had begun, Stoller moved to be relieved as counsel 

of record because of “a non-waivable conflict” of interest. Stoller 

declared: “Based on the actual conflict, there has been an 

irreparable breakdown of the working relationship between 

counsel and client.” “The specific facts which give rise to this 

[conflict] are . . . required to be kept confidential.” The trial court

granted the motion. 

The next day, plaintiffs were not ready to proceed with the 

trial. Felipa Eith had unsuccessfully tried to retain substitute 

counsel. The Mitchells had retained substitute counsel, but he 

was not ready to proceed. Wasserman had also retained 

substitute counsel, but he was neither ready nor present in court. 

Chang was unrepresented. 

The trial court denied Felipa Eith’s and the Mitchells’ 

request for a continuance. The trial resumed with the crossexamination of Chang by counsel for the Ketelhuts and counsel 

for HOA. Felipa Eith, a licensed attorney, frequently objected to 

counsels’ questions. After the cross-examination of Chang, Eith 

called John Mitchell as a witness and examined him. On the 

19
next day of trial - August 18, 2015 - no testimony was taken. 

The court continued the matter to October 26, 2015. 

The Eiths contend that the trial court erroneously granted 

Stoller’s request to be relieved as counsel. They claim that the 

court “failed to undertake its duty of inquiry” and “duty to 

explore the conflict.” The claim is forfeited because it is not 

supported by meaningful legal analysis with citations to the 

record and pertinent authority. (In re S.C. (2006) 138 

Cal.App.4th 396, 408.) The only authority they cite - Aceves v. 

Superior Court (1996) 51 Cal.App.4th 584, 592-593 - is a criminal 

case. There, the court noted that “case law ties the duty of 

inquiry to the duty of the trial court to ensure the ‘ “trial is 

conducted with solicitude for the rights of the accused” ’and to 

‘ “protect the right of the accused to have the assistance of 

counsel.” ’ [Citation.]” (Id. at p. 593.) These rights are not 

implicated in the instant civil action. 

In any event, even if the trial court had erred, the Eiths 

have not shown that they were prejudiced. (See Freeman v. 

Sullivant (2011) 192 Cal.App.4th 523, 527 [“A judgment is 

reversible only if any error or irregularity in the underlying 

proceeding was prejudicial”]; In re S.C., supra, 138 Cal.App.4th 

at p. 407 [“appellant cannot prevail without establishing that she 

was prejudiced by the alleged error”].) 

The Eiths and other plaintiffs argue that the trial court 

abused its discretion in resuming Chang’s cross-examination 

without granting their request for a continuance. Plaintiffs have

“not attempted to show [they were] prejudiced by the denial of 

a continuance. . . . Therefore, [they have] not met [their] burden 

on appeal, and any argument that the failure to grant the 

requested continuance constituted reversible error is deemed 

20
waived. [Citation.]” (Freeman v. Sullivant, supra, 192 

Cal.App.4th at p. 528.)2]]

The Trial Court Properly Applied the Judicial 

Deference Rule Adopted by Our Supreme Court in Lamden

In its statement of decision, the trial court applied the rule 

of judicial deference adopted by our Supreme Court in Lamden, 

supra, 21 Cal.4th 249. The plaintiff homeowner in Lamden 

complained that a condominium development’s community 

association had wrongly decided to treat a termite infestation 

“locally (‘spot treat’).” (Id. at p. 252.) The plaintiff wanted the 

association to fumigate the building. The Supreme Court stated, 

“[W]e adopt today for California courts a rule of judicial deference 

to community association board decisionmaking that applies . . . 

when owners in common interest developments seek to litigate 

ordinary maintenance decisions entrusted to the discretion of 

their associations' boards of directors. [Citation.]” (Id. at p. 253.) 

The rule is as follows: “Where a duly constituted community 

association board, upon reasonable investigation, in good faith 

and with regard for the best interests of the community 

association and its members, exercises discretion within the 

scope of its authority under relevant statutes, covenants and 

restrictions to select among means for discharging an obligation 

to maintain and repair a development's common areas, courts 

2 In his reply brief, Chang argues for the first time that he 

was denied his “constitutionally protected due process rights to 

be represented by counsel while actually on the stand under 

cross-examination.” The point is forfeited because it was not 

raised in his opening brief. (Benach v. County of Los Angeles

(2007) 149 Cal.App.4th 836, 852 & fn. 10; Paulus v. Bob Lynch 

Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)

21

 
should defer to the board's authority and presumed expertise.” 

(Ibid.)

The Supreme Court explained: “The formulation we have 

articulated affords homeowners, community associations, courts 

and advocates a clear standard for judicial review of discretionary

economic decisions by community association boards, mandating 

a degree of deference to the latter’s business judgments sufficient 

to discourage meritless litigation . . . . [¶] Common sense 

suggests that judicial deference in such cases as this is 

appropriate, in view of the relative competence, over that of 

courts, possessed by owners and directors of common interest 

developments to make the detailed and peculiar economic 

decisions necessary in the maintenance of those developments. A 

deferential standard will, by minimizing the likelihood of 

unproductive litigation over their governing associations’

discretionary economic decisions, foster stability, certainty and 

predictability in the governance and management of common 

interest developments.” (Lamden, supra, 21 Cal.4th at pp. 270-

271.)

Some courts have narrowly construed the Lamden rule. In 

Affan v. Portofino Cove Homeowners Assn. (2010) 189 

Cal.App.4th 930, 940, the court observed: “It is important to note 

the narrow scope of the Lamden rule. It is a rule of deference to 

the reasoned decisionmaking of homeowners association boards 

concerning ordinary maintenance. . . . The Supreme Court’s 

precise articulation of the rule makes clear that the rule of 

deference applies only when a homeowner sues an association 

over a maintenance decision that meets the enumerated criteria. 

[Citations.]” (See also Ritter & Ritter, Inc. v. The Churchill 

Condominium Assn. (2008) 166 Cal.App.4th 103, 122.)

22
Most courts have broadly construed the Lamden rule. In 

Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 

863, 875 (Haley), the court concluded that Lamden “reasonably 

stands for the proposition that the Association had discretion to 

select among means for remedying violations of the CC&R’s

without resorting to expensive and time-consuming litigation, 

and the courts should defer to that discretion.”

In Harvey v. The Landing Homeowners Assn. (2008) 162 

Cal.App.4th 809, 820 (Harvey), the CC&Rs allowed the board “to 

designate storage areas in the common area.” They also gave the 

board “the exclusive right to manage, operate and control the 

common areas.” (Ibid.) The court held, “Under the ‘rule of 

judicial deference’ adopted by the court in Lamden, we defer to 

the Board’s authority and presumed expertise regarding its sole 

and exclusive right to maintain, control and manage the common 

areas when it granted the fourth floor homeowners the right, 

under certain conditions, to use up to 120 square feet of 

inaccessible attic space common area for rough storage.” (Id. at 

p. 821.)

In Watts v. Oak Shores Community Association (2015) 235 

Cal.App.4th 466, 473 (Watts), this court rejected the plaintiffs’ 

claim “that the rule applying judicial deference to association 

decisions applies only to ordinary maintenance decisions.” We

reasoned: “It is true the facts in Lamden involve the association 

board's decision to treat termites locally rather than fumigate.

But nothing in Lamden limits judicial deference to maintenance 

decisions.” (Ibid.) “[T]here is no reason to read Lamden so 

narrowly.” (Ibid.) “Common interest developments are best 

operated by the board of directors, not the courts.” (Ibid.) We

applied the judicial deference rule to the board’s adoption of rules

23
and imposition of fees relating to short-term rentals of 

condominium units. We noted that, in Dolan-King v. Rancho 

Santa Fe Assn. (2000) 81 Cal.App.4th 965, 979 (Dolan-King), “the 

court gave deference to an association board's decision denying 

an owner's application for a room addition on aesthetic grounds.” 

(Watts, supra, 235 Cal.App.4th at p. 473.) 

Based on Lamden, Haley, Harvey, Watts, and Dolan-King, 

the judicial deference rule applies to an association board’s

discretionary decisions concerning the operation of the common 

interest development, e.g., the board’s maintenance and repair 

decisions (Lamden), its selection of the appropriate means to 

remedy a violation of the CC&Rs (Haley), its designation of 

storage space in a common area (Harvey), its adoption of rules 

relating to short-term rentals (Watts), or its approval or rejection 

of a homeowner’s improvement plan (Dolan-King). As we 

observed in Watts, “Common interest developments are best 

operated by the board of directors, not the courts.” (Watts, supra, 

235 Cal.App.4th at p. 473.)

Here, the Board made a decision concerning the operation 

of the common interest development. The Board decided whether 

the Ketelhuts violated the CC&Rs’ prohibition against the use of 

the Property for business or commercial activity. The Board 

reasoned that the CC&Rs’ prohibition did not encompass the 

operation of the vineyard because it did not affect the residential

character of the community. Board member Daily testified, “I 

considered that [the Ketelhuts] were going to do something that 

was not going to have a negative impact on the community and 

therefore it was allowable.” Board member Yen did “not see 

picking grapes to go to Custom Crush [a]s impairing any 

24
activities in the community or in any way creating blockage to 

the community or a problem for the community.”

We do not defer to the Board’s interpretation of the CC&Rs. 

The interpretation of CC&R’s is a legal question to be decided by 

the courts, not the Board. “CC&R’s are interpreted according to 

the usual rules for the interpretation of contracts generally, with 

a view toward enforcing the reasonable intent of the parties. 

[Citations.]” (Harvey, supra, 162 Cal.App.4th at p. 817.) 

“ ‘ “[N]ormally the meaning of contract language . . . is a legal 

question.” [Citation.] “Where, as here, no conflicting parol 

evidence is introduced concerning the interpretation of the 

document, ‘construction of the instrument is a question of law, 

and the appellate court will independently construe the 

writing.’ ” [Citation.]’ ” (Cohen v. Five Brooks Stable (2008) 159 

Cal.App.4th 1476, 1483; see also Legendary Investors Group No. 

1, LLC v. Niemann (2014) 224 Cal.App.4th 1407, 1413 [“contract

interpretation is a legal question for the court”].)

In our review of the CC&Rs, we conclude that the Board

correctly interpreted the prohibition of business or commercial 

activity. The prohibition does not encompass activity that has no 

effect on the community’s residential character. The purpose of 

the prohibition is to preserve the community’s residential 

character. 

The trial court properly deferred to the Board’s 

discretionary decision that the Ketelhuts’ operation of the 

vineyard did not violate the prohibition against business or 

commercial activity because it did not affect the community’s 

residential character. The Board made its decision “upon 

reasonable investigation, in good faith and with regard for the 

best interests of the community association and its members.” 

25
(Lamden, supra, 21 Cal.4th at p. 253.). The Board interviewed 

homeowners and conducted a public hearing at which the 

Ketelhuts answered questions. Yen testified that the Board’s 

decision was “based on our looking at it from the scope of the 

community: Is it creating any stress for the community, is it 

impairing the community’s functioning, is it invasive to the 

community, and have we received any complaints regarding what 

is happening.” “Our decision and focus of discussion was on the 

impact o[n] the community.” 

“Common sense suggests that judicial deference in such 

cases as this is appropriate, in view of the relative competence, 

over that of courts, possessed by owners and directors of common 

interest developments . . . .” (Lamden, supra, 21 Cal.4th at 

p. 270.) The Board members lived in the community and had 

discussed the Ketelhuts’ vineyard with other homeowners. They 

were in a much better position than the courts to evaluate the 

vineyard’s effect on the community. We “should defer to the 

[B]oard's authority and presumed expertise.” (Id. at p. 265.)

The Board Correctly Decided that the Operation of the

Vineyard Is Not Prohibited Business or Commercial Activity

As an alternative holding, we conclude that as a matter of 

law, the Ketelhuts’ operation of the vineyard is not prohibited 

business or commercial activity because it does not affect the 

community’s residential character.

No signs advertising wine sales are posted on the Property. 

Although the Ketelhuts’ logo “Los Robles Hills Winery” and their 

website address are displayed on the exterior of their truck, “they 

keep the truck covered” while it is on the Property. The wine is 

made and bottled in Camarillo. The bottled wine is stored in 

Malibu. It is not shipped from the Property. The trial court 

26
found that there is “no retail traffic” to the Property, which does 

not have a wine-tasting room. The court said, “What was 

accomplished [on the Property] was cultivation of the grapes, 

picking of the grapes, and transportation of the grapes to 

Camarillo.” 

Had the Ketelhuts retained the wine for their personal use 

or given it away to friends or charity, there would have been no 

basis for finding business or commercial activity. All activities 

relating to the vineyard would have been permissible. That the 

Ketelhuts offered the wine for sale over the Internet did not 

transform their use of the Property into prohibited business or 

commercial activity. At all times the operation of the vineyard 

was fully consistent with residential use. No homeowner familiar 

with the vineyard’s operation would have had reason to suspect 

that the vineyard was being used to produce wine for sale to the 

public. The business or commercial activity of making and 

selling the wine did not occur on the Property. Board member 

Daily testified, “They were growing grape vines just like I grow 

fruit trees and Mr. Krupnick grows avocado trees, and people 

grow grass in their yard.” Moreover, instead of being a blight on 

the community, the vineyard was an aesthetic enhancement. 

Pranas Raulinaitis, who served on the Committee that approved 

the Ketelhut’s landscape plan in 2005, testified that the 

Committee members “viewed the [vineyard] as an amazing 

[aesthetic] enhancement to the neighborhood.” 

We recognize that the growing of grapes on the Property is

an integral part of the Ketelhuts’ winemaking business. As Daily

testified, “You have to have grapes in order to make wine.” But 

absurd consequences would flow from construing the CC&Rs as 

prohibiting any business or commercial activity whatsoever 

27
irrespective of its effect on the residential character of the 

community. 

For example, some appellate attorneys work at home, 

reading records, doing research, and writing briefs, but meet with 

clients elsewhere. Although these attorneys are engaged in the 

business of practicing appellate law at their home offices, their 

business activities do not affect the residential character of their 

communities. 

It would be absurd to construe the CC&Rs as prohibiting 

such harmless conduct, just as it would be absurd to construe 

them as prohibiting the Ketelhuts from operating their vineyard. 

“ ‘In construing a contract the court . . . should adopt that 

construction which will make the contract reasonable, fair and 

just [citation]; . . . [and] should avoid an interpretation which will 

make the contract . . . harsh, unjust or inequitable [citations], or 

which would result in an absurdity [citations] . . . .’ ” (Wright v. 

Coberly-West Co. (1967) 250 Cal.App.2d 31, 35-36.) 

There will be instances, of course, where a homeowner’s 

activity constitutes prohibited business activity even though the 

business is primarily conducted off the residential premises. For 

example, if a homeowner conducted a trucking business off the 

premises except that the trucks were stored on the premises

when not in use, the homeowner might be in violation of the 

business prohibition. The presence of the commercial trucks 

would detract from the community’s residential character. (See 

Smart v. Carpenter (N.M. Ct.App. 2006) 134 P.3d 811.)

[[The Ninth Cause of Action to Quiet Title

The Eiths argue that the trial court’s judgment is not 

supported by the law or the facts. It is not clear whether this

argument applies solely to the eighth cause of action for 

28
declaratory and injunctive relief, or whether it also applies to the 

ninth cause of action to quiet title to the common area. If the 

argument applies to the ninth cause of action, it is forfeited 

because it is not supported by meaningful legal analysis with 

citations to the record and pertinent authority. (In re S.C., supra, 

138 Cal.App.4th at p. 408.) 

The Eiths contend that, on the ninth cause of action, “the 

trial court did not articulate in its decision (a) what if any legal or 

equitable rights each of the lot owners had in the 18 acres, nor 

did the court decide (b) whether or not the 18 acres is ‘common 

area’ as argued by [plaintiffs].” We disagree. In its statement of 

decision the trial court declared: “The common area of 18.56 

acres is Common Interest land as defined by CCR Title 10, 

Chapter 6, Article 1, paragraph 2705.” “[T]itle to the 18.5 acre 

common area is confirmed and quieted to the defendant 

Homeowners Association.” The court rejected the complaint’s 

contention that the common area is “owned collectively by the 

twenty-eight (28) lot owners of the subdivision, each lot owner 

owning a 1/28 undivided interest in said property.” 

Street Maintenance

The Eiths assert that “the trial court [err]ed in refusing to 

decide street maintenance obligations in the [common interest 

development].” In its statement of decision the trial court said it 

had “ruled before the presentation of evidence that the issue of 

the streets was not tendered by the pleadings or discovery and 

therefore would not be a subject for resolution at trial.” The 

Eiths have forfeited the issue because they have not presented

meaningful legal analysis with supporting citations to the record 

and pertinent authority. (In re S.C., supra, 138 Cal.App.4th at 

p. 408.) 

29
The Kettlehuts’ Encroachment on the Common Area

The Eiths claim that the trial court erred in “refusing to 

decide if the Ketelhut vineyard encroached on . . . common area.” 

The court decided this issue. In its statement of decision the 

court found, “[S]tarting in January of 2005, [Jeffrey Ketelhut] 

planted 600 grape vines on his property and extending into the 

18.5 acre common area at the rear of []his property by just under 

.4 acres.” In any event, it is undisputed that the Ketelhuts 

encroached on the common area. In their brief defendants 

acknowledge, “Unbeknownst to the Ketelhuts and [HOA], some of 

the [Ketelhuts’] grape plants encroached on the 18-acre parcel 

owned by the Association.” 

Denial of Plaintiffs’ Motion to Disqualify HOA’s Counsel

The Eiths maintain that the trial court erroneously denied 

plaintiffs’ motion to disqualify HOA’s counsel. The issue is 

forfeited because the Eiths have failed to present meaningful 

legal analysis with supporting citations to the record and 

authority. (In re S.C., supra, 138 Cal.App.4th at p. 408.)

Plaintiffs’ Appeal from Award of Attorney Fees

“In an action to enforce the governing documents [of a 

common interest development], the prevailing party shall be 

awarded reasonable attorney’s fees and costs.” (Civ. Code, 

§ 5975, subd. (c).) Except for the Eiths, plaintiffs’ appeal from the 

award of attorney fees is based on their claim that the judgment 

in favor of defendants on the eighth cause of action must be 

reversed. Therefore, they assert that the award of attorney fees 

is “premature.” Because we are affirming the judgment, the 

award is not premature.

The Eiths present numerous grounds for reversing the 

award of attorney fees. They contend that defendants are not 

30
“true prevailing parties.” (Capitalization omitted.) The 

contention lacks merit because judgment was rendered in favor of 

defendants and against plaintiffs on both the eighth and ninth 

causes of action. 

The Eiths argue that, because of Jeffrey Eith’s “bankruptcy 

filing” and the automatic stay triggered by that filing, it was 

“improper” to order him to pay attorney fees. “The automatic 

stay is self-executing, effective upon the filing of the bankruptcy 

petition. [Citations.] The automatic stay sweeps broadly, 

enjoining the commencement or continuation of any judicial . . . 

proceedings against the debtor . . . .” (In re Gruntz (9th Cir. 2000) 

202 F.3d 1074, 1081.) The automatic stay argument is forfeited 

because it was not raised in the trial court. (In re Marriage of

Moschetta (1994) 25 Cal.App.4th 1218, 1227 [“parties are not 

normally allowed to raise new issues on appeal [because] it is 

unfair to their opponents who did not have the opportunity to 

attack that theory factually or legally in the trial court”].)3 

The Eiths remaining grounds for contesting the award of 

attorney fees are rejected for lack of meaningful legal analysis 

with supporting citations to the record and pertinent authority. 

(In re S.C., supra, 138 Cal.App.4th at p. 408.)

THE KETELHUTS’ CROSS-APPEAL FROM 

ORDER AWARDING ATTORNEY FEES 

The Ketelhuts claim that they were entitled to attorney 

fees of $351,432.55. In their cross-appeal, the Ketelhuts argue 

that the trial court abused its discretion in reducing the fees to 

$250,506.50, a shortfall of $100,926.05.

3

Defendants raised the forfeiture issue in their respondent’s 

brief. The Eiths did not file a reply brief.

31

 
Disallowance of Fees Paid to Prior Attorney

The $100,926.05 shortfall includes attorney fees of 

$75,930.05 paid by the Ketelhuts to their prior attorney, Myers, 

Widders, Gibson, Jones & Schneider, LLP (Myers, Widders). The 

fees are supported by Jeffrey Ketelhut’s declaration under 

penalty of perjury and Myers, Widders’ detailed billing 

statements (Exhibit B to the declaration). Each statement 

includes a description of the service performed, the date it was 

performed, the time expended, and the fee incurred for the 

service. There is no supporting declaration from Myers, Widders.

As to Jeffrey Ketelhut’s declaration, plaintiffs objected to 

the following statement: “My former attorneys of record 

submitted invoices to me for attorney fees incurred in the defense 

of myself and Marcella Ketelhut in the amount of $75,930.05. A 

true and correct copy of the original attorney bills is attached 

hereto as Exhibit ‘B.’ ” The ground for plaintiffs’ objection was 

that “Mr Ketelhut has no personal knowledge of the contents, 

authenticity, or originality of the billings he has attached as 

Exhibit B.” 

As to the billing statements (Exhibit B), plaintiffs objected: 

“The contents of Exhibit B are unauthenticated hearsay, and lack 

any foundation for admissibility under any exception to the 

hearsay rule. Mr. Ketelhut . . . further [is] not a qualified witness 

with personal knowledge adequate to testify to the genuineness 

or authenticity or accuracy of any of the contents of Exhibit B, 

which are documents prepared by other persons and/or entities.” 

The trial court sustained plaintiffs’ objections. It

disallowed the fees in their entirety because they are “not 

properly established.” The court provided no further explanation 

for its ruling. 

32
“ ‘ “ ‘[A]n appellate court reviews any ruling by a trial court 

as to the admissibility of evidence for abuse of discretion.’ ” 

[Citation.]’ [Citation.] ‘The court's “ ‘discretion is only abused 

where there is a clear showing [it] exceeded the bounds of reason, 

all of the circumstances being considered.’ ” [Citation.]’ 

[Citation.]” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 

Cal.App.4th 165, 199.) We also review for abuse of discretion a 

trial court’s decision to award or deny attorney fees. (Connerly v.

State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)

The Ketelhuts contend that the billing statements were 

admissible pursuant to the following rule of Pacific Gas & Elec.

Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 

42-43 (Pacific Gas): “Since invoices, bills, and receipts for 

[attorney fees] are hearsay, they are inadmissible independently 

to prove that liability for the [fees] was incurred, that payment 

was made, or that the charges were reasonable. [Citations.] If, 

however, a party testifies that he incurred or discharged a 

liability for [attorney fees], any of these documents may be 

admitted for the limited purpose of corroborating his testimony 

[citations], and if the charges were paid, the testimony and 

documents are evidence that the charges were reasonable. 

[Citations.]”

Because “there was testimony in the present case that the 

invoices had been paid,” the billing statements in Exhibit B were 

admissible to corroborate Jeffrey Ketelhut’s declaration that he 

had incurred liability for the attorney fees. (Pacific Gas, supra, 

69 Cal.2d at p. 43.) They were also admissible to show that the 

fees were reasonable. (Ibid.)

But “[t]he individual items on the invoices . . . were [to be] 

read, not [only] to corroborate payment or the reasonableness of 

33
the charges, but to prove that [the claimed services] had actually 

been [performed]. No qualified witness was called to testify that 

the invoices accurately recorded the [services performed] by 

[Myers, Widders], and there was no other evidence as to what 

[services] were [performed]. This use of the invoices was 

[impermissible]. [Citations.] An invoice submitted by a third 

party is not admissible evidence on this issue [i.e., to prove that 

the services described in the invoice were actually performed] 

unless it can be admitted under some recognized exception to the 

hearsay rule.” (Pacific Gas, supra, 69 Cal.2d at p. 43.) “It might 

come in under the business records exception (Evid. Code, § 1271) 

if ‘. . . supported by the testimony of a witness qualified to testify 

as to its identity and the mode of its preparation.’ [Citation.]” 

(Id. at p. 43, fn. 10.)

In Pacific Gas the defendant damaged the plaintiff’s 

turbine. Plaintiff brought an action against defendant to recover 

its cost of repair. “To prove the amount of damages sustained, 

plaintiff presented invoices received from . . . [the] repairer of the 

turbine, the drafts by which plaintiff had remitted payment, and 

testimony that payment had been made.” (Pacific Gas, supra, 69 

Cal.2d at p. 42.) Although the invoices were admissible to show 

the reasonableness of the charges for the repairs, they were not 

admissible “to prove that these specific repairs had actually been 

made.” (Id. at p. 43.) 

Here, as in Pacific Gas, the billing statements from Myers, 

Widders were not admissible to show that the services described 

in the statements had actually been performed. No qualified 

witness testified as to the “identity and . . . mode of . . .

preparation” of the statements. (Evid. Code, § 1271, subd. (c).) 

Accordingly, the trial court did not abuse its discretion in 

34
sustaining plaintiffs’ objections and concluding that the 

Ketelhuts’ claim for attorney fees billed by Myers, Widders had 

not been “properly established.” 

McAllister v. George (1977) 73 Cal.App.3d 258, is 

distinguishable. There, the defendant argued that a bill for 

dental services had been properly excluded from evidence 

because it was hearsay. The appellate court rejected the 

defendant’s argument: “Plaintiff testified that the dental services 

were performed, that he received a bill for them, and that he paid 

the bill. It has been held that under such circumstances the bill, 

which ordinarily would constitute inadmissible hearsay, is 

nevertheless admissible for the limited purpose of corroborating 

plaintiff's testimony and showing that the charges were 

reasonable. [Citations.]” (Id. at p. 263, italics added.) Here, in 

contrast, Jeffrey Ketelhut did not declare, and lacked the 

personal knowledge necessary to declare, that the numerous 

services described in the billing statements had actually been 

performed. For example, a statement dated August 31, 2011, 

billed the Ketelhuts for attorney conferences in which they had 

not participated. The Ketelhuts lacked personal knowledge

whether these conferences had occurred. In his declaration 

Jeffrey Ketelhut said that Myers, Widders had “submitted 

invoices to [him] for attorneys fees incurred in the defense of 

[himself] and Marcella Ketelhut.” He did not say that Myers, 

Widders had actually performed the services described in the 

invoices. The Ketelhuts could have rectified the situation by 

submitting a supporting declaration from Myers, Widders.4

4See California Attorney Fee Awards (Cont.Ed.Bar 3d ed.,

2018 update) Contents of Comprehensive Fee Motion, § 11.53 [“A 

comprehensive fee motion should include the following: . . . 

35

 
Disallowance of Attorney Fees for 2014 

Motion (Morrey Wasserman and Eileen Gabler)

In March 2014, plaintiffs Morrey Wasserman and Eileen 

Gabler voluntarily dismissed themselves as parties to the action 

against the Ketelhuts. The Ketelhuts moved for an award of 

attorney fees against Wasserman and Gabler. In June 2014, the

trial court granted the motion and awarded attorney fees of 

$156,614.47. Wasserman and Gabler appealed. In an 

unpublished opinion, we concluded that the award was 

premature. We reversed and “remanded with directions to defer 

ruling on [the Ketelhuts’] motion for attorney fees until after the

litigation among the various parties has been resolved.” 

(Wasserman et al. v. Ketelhut et al. (Dec. 1, 2015, B258642) 

[nonpub. opn.].)

After judgment was rendered in favor of the Ketelhuts as to 

all of the parties, the Ketelhuts sought an award of attorney fees 

incurred in bringing their unsuccessful 2014 motion to recover 

attorney fees from Wasserman and Gabler. The trial court 

denied the request, characterizing the 2014 motion as a “failed 

motion[].” The Ketelhuts claim that the trial court abused its

discretion because they were the prevailing party. We disagree. 

The Ketelhuts were not the prevailing party as to the 2014 

Declarations from the attorneys claiming fees, stating their 

background and training, their role in the litigation, a description 

of their services (often with time records attached as an exhibit to 

the declaration), an explanation of why the hours are reasonable 

(e.g., hours generated by the losing party's tactics), a description 

of any billing judgment exercised, a statement of the hourly rates 

and their basis, and any other facts the court needs for its 

determination.”

36

 
motion because the order granting the motion was reversed on 

appeal.

Disallowance of Attorney Fees for 2013 Motion (Kelly Park)

Kelly Park was one of the original plaintiffs in the action 

against the Ketelhuts. In August 2013 she voluntarily dismissed

herself as a party to the action against the Ketelhuts. In 

November 2013 the trial court denied the Ketelhuts’ motion for

an award of attorney fees against Park. 

The Ketelhuts assert: “[They] are not appealing the trial 

court’s 2013 denial of their attorneys fee motion against Kelly 

Park. [They] are appealing the July 28, 2016 Order reducing 

[their] fee award by amounts incurred in preparing that 2013 

motion.” The trial court said that it had reduced the Ketelhuts’ 

attorney fees for “the time spent on the failed motion[] for 

attorney’s fees against Kelly Park.” The trial court did not abuse 

its discretion because the Ketelhuts were not the prevailing party

on the 2013 motion.]]

Disposition

The judgment and postjudgment award of attorney fees and 

costs are affirmed. The parties shall bear their own costs on 

appeal.

CERTIFIED FOR PARTIAL PUBLICATION.

GILBERT, P. J.

I concur:

PERREN, J.

37
PERREN, J.

I concur.

In a vain effort to “define what may be indefinable,” Justice 

Potter Stewart opined, “I know it when I see it.”5 In like manner, 

the dissent “knows unfairness when [it] sees it” - when it sees 

how the Ketelhuts harvest their grapes and make and sell their 

wine. The majority sees it otherwise. In my opinion this is not a 

matter for such subjectivity. Rather, we should defer to the good 

faith exercise of discretion and “the board’s authority and 

presumed expertise.” (Maj. opn. ante, at pp. 22-23, citing 

Lamden v. La Jolla Shores Clubdominum Homeowners Assn. 

(1999) 21 Cal.4th 249, 265.) 

Both the majority and the dissent appeal to “Common 

sense.” (Maj. opn. ante, at p. 22; dis. opn. post, at p. 3.) In doing 

so they quote from Lamden: I join with them and set forth the 

full closing of that opinion:

“Common sense suggests that judicial deference in such 

cases as this is appropriate, in view of the relative competence, 

over that of courts, possessed by owners and directors of common 

interest developments to make the detailed and peculiar economic 

decisions necessary in the maintenance of those developments. A 

deferential standard will, by minimizing the likelihood of 

unproductive litigation over their governing associations’ 

discretionary economic decisions, foster stability, certainty and 

predictability in the governance and management of common 

interest developments. Beneficial corollaries include enhancement 

of the incentives for essential voluntary owner participation in 

common interest development governance and conservation of 

scarce judicial resources.” (Lamden v. La Jolla Shores 

5 Jacobellis v. Ohio, (1964) 378 U.S. 184, 197.

1

 
Clubdominum Homeowners Assn., supra, 21 Cal.4th at pp. 270-

271, italics added.)

This dispute and the resulting expense and acrimony are 

strong testament to the wisdom of such deference.

CERTIFIED FOR PUBLICATION.

PERREN, J.

2
YEGAN, J., Dissenting:

I know unfairness when I see it. The judgment should be 

reversed because plaintiffs are entitled to a ruling from the trial 

court that the Ketelhuts were conducting a business in violation 

of the Covenants, Conditions, and Restrictions running with the 

land. (CC&Rs.) It does not matter whether the Ketelhuts could 

win an award for having the most beautiful vineyard in the 

world. It does not matter whether the wine from the grapes 

rivals the finest wines of the Napa Viticulture. As I shall explain, 

the facts unerringly point to the conclusion that the Ketelhuts 

were conducting a vineyard business on their property (the 

Property). 

There will, of course, be situations in which the conducting 

of a business at a residence in violation of the CC&Rs will be so 

trivial to the neighborhood that it will be deemed not to be in 

violation of the CC&Rs. There is no reason to list them and one 

is only limited by imagination. As Colonel Stonehill said, “I do 

not entertain hypotheticals. The world, as it is, is vexing 

enough.” (True Grit (2010 film).) So here, we need only decide 

whether the maintenance of the vineyard as a business is in 

violation of the CC&Rs.

Judicial Deference Rule

The judicial deference rule applies where an association 

board “exercises discretion within the scope of its authority under 

relevant statutes, covenants and restrictions to select among 

means for discharging an obligation to maintain and repair a 

development’s common areas.” (Lamden v. La Jolla Shores 

Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 265 

(Lamden).) In Lamden our Supreme Court concluded that the 

courts should defer to the board’s treatment of a termite problem 

1
because it was “a matter entrusted to [the board’s] discretion 

under the [CC&Rs] and [now repealed] Civil Code section 1364.” 

(Id. at pp. 264-265.) Here, there is no statute or provision in the 

CC&Rs entrusting to the discretion of the Los Robles Hills 

Estates Board of Directors (Board) whether a homeowner is 

engaging in prohibited business or commercial activity within the 

meaning of the CC&Rs. This is a straightforward legal question 

to be decided by the courts, not members of the Board who lack 

legal expertise. (See Smart v. Carpenter (N.M.Ct.App. 2006) 134 

P.3d 811, 814 [it “is a question of law” whether homeowner 

violated covenant prohibiting “‘commercial activity or business’ 

on any tract in the Subdivision”].)

The inapplicability of the judicial deference rule is 

supported by Dover Village Assn. v. Jennison (2010) 191 

Cal.App.4th 123 (Dover Village). There, the issue was whether a 

sewer pipe was ordinary “common area to be maintained and 

repaired by the Association” or “‘[an] exclusive use common area’” 

designed to serve a particular homeowner who would be 

responsible for its maintenance. (Id. at pp. 126-127.) The 

Association decided that the sewer pipe was the defendant 

homeowner’s responsibility because it exclusively serviced his 

condominium. The appellate court concluded that the sewer pipe 

was not an exclusive use common area. It rejected the 

Association’s argument that, under Lamden, it should defer to 

the Association’s decision: “The argument fails because it 

confuses a legal issue governed by statutory and contract text 

with matters that genuinely do lend themselves to board 

discretion. [¶] [¶] There is an obvious difference between a legal 

issue over who precisely has the responsibility for a sewer line [or 

whether a homeowner is engaged in prohibited business or 

2
commercial activity within the meaning of the CC&Rs] and how a 

board should go about making a repair that is clearly within its 

responsibility. . . . [W]e know of no provision in the DavisSt[e]rling Act or the CC&R’s that makes the Association or its 

board the ultimate judge of legal issues affecting the 

development.” (Id. at p. 130) 

The court considered Lamden to be “a nice illustration of 

matters genuinely within a board's discretion.” (Dover Village, 

supra, 191 Cal.App.4th at p. 130.) Unlike Lamden, the legal 

issue here is not genuinely within the Board’s discretion. In 

Lamden the Supreme Court noted, “Common sense suggests that 

judicial deference in such cases as this is appropriate, in view of

the relative competence, over that of courts, possessed by owners 

and directors of common interest developments to make the 

detailed and peculiar economic decisions necessary in the 

maintenance of those developments.” (Lamden, supra, 21 Cal.4th 

at pp. 270-271.) In contrast to Lamden, the Board is not 

equipped to determine whether the Ketelhuts were engaged in 

business or commercial activity in violation of the CC&Rs.

If the judicial deference rule applied here, there would be 

few board decisions to which it did not apply. The judicial 

deference rule “does not create a blanket immunity for all the 

decisions and actions of a homeowners association.” (Affan v. 

Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 

940.)

The Vineyard Is Business or Commercial Activity 

within the Meaning of the CC&Rs

The majority opinion concludes that, as a matter of law, the 

Ketelhuts’ operation of the vineyard is not a prohibited business 

or commercial activity because it does not affect the residential 

3
character of the community. But paragraph 1.01 of the CC&Rs 

does not say, “No lot shall be used for any purpose (including any 

business or commercial activity [that does not affect the 

residential character of the community]) other than for the 

residence of one family and its domestic servants.” (Italicized 

language added.) “‘“In construing a contract which purports on 

its face to be a complete expression of the entire agreement, 

courts will not add thereto another term, about which the 

agreement is silent. [Citation.]”’ [Citation.]” (The Ratcliff

Architects v. Vanir Construction Management, Inc. (2001) 88 

Cal.App.4th 595, 602.) On its face paragraph 1.01 prohibits any

business or commercial activity without qualification or 

exception. Subparagraph 3 of paragraph 2.03 of the CC&Rs 

provides that “[f]or good cause shown . . . deviations from the 

applicable deed restrictions” may be allowed “to avoid 

unnecessary hardships or expense, but no deviation shall be 

allowed to authorize a business or commercial use.” (Italics 

added.) How can the operation of a commercial vineyard not 

qualify as commercial use?

There may be cases where business or commercial activity 

is so de minimis or concealed that it does not violate the CC&Rs, 

such as the example given in the majority opinion of an appellate 

attorney with a home office who sees no clients on the premises. 

But the Ketelhuts’ operation of their commercial vineyard was 

neither de minimis nor concealed. They filed a fictitious business 

name statement and were issued both a business license and an 

alcoholic beverage sales license. The licenses originally indicated 

that the business was located at the Property. Board member 

Yen testified: “[A] notice of intent to sell [alcoholic beverages] . . . 

was posted on their front where their mailbox was, and it needed 

4
to be posted elsewhere because you’re not supposed to be 

advertising a business in the community. So they were advised 

not to post it there.” The Ketelhuts advertised on Facebook, 

Twitter, their personal web site, “and through [their] wholesale 

accounts.” They filed an Internal Revenue Service Schedule C 

(Form 1040) to report their business income or loss. The logo 

“Los Robles Hills Winery” and their website address were 

displayed on the exterior of their truck. Although the Ketelhuts 

covered the truck while it was parked on the Property, the logo 

and website address were openly displayed when they drove the 

truck to and from the Property.

The Ketelhuts sought and obtained publicity for their 

winery by giving an interview to the local newspaper, the 

Ventura County Star. In January 2011 the newspaper published 

an article about the winery. Until he read the article, plaintiff 

John Mitchell was not aware that the Ketelhuts were growing 

grapes for a commercial purpose. Mitchell “knew that they 

weren’t supposed to be doing an activity like that because of the 

CC&Rs,” which “exclude any business activity.” 

A copy of the newspaper article was marked as Exhibit 54, 

but it was neither offered nor received into evidence. I quote 

from the article because it was before the trial court, witnesses 

testified as to its content, Felipa Eith quoted from the article 

during her examination of Jeffrey Ketelhut, and the article 

arguably is judicially noticeable not to prove the truth of the facts 

reported, but to prove the extent to which the commercial nature 

of the vineyard was publicized. (Evid. Code, §§ 452, subd. (h), 

459.) 

The article takes up the entire front page of the 

newspaper’s Sunday “Business” section (“Section E”). It is 

5
entitled, “GRAPE expectations[:] T.O. [Thousand Oaks] couple’s 

home vineyard about to pay off.” The article includes 

photographs of the vineyard, the Ketelhuts, and bottles of wine 

produced from grapes grown at the vineyard. The bottles are 

labeled, “Los Robles Hills.” One of the photographs of the 

Ketelhuts is captioned, “Jeff and Marcella Ketelhut, owners of 

the commercial vineyard in the Conejo Valley, enjoy discussing 

the challenges of wine production.” (Italics added.) The article 

includes the website address of the Ketelhuts’ winery.

The article states in part: “For Jeff and Marcella Ketelhut, 

the dream of owning a winery has come to fruition on the slopes 

near their Thousand Oaks home.” “The Ketelhuts are not yet 

making a profit but said they are selling their wine, at $35 a 

bottle, through their website, by word of mouth and by hosting 

wine tastings by appointment at their home tasting room. [¶] . . . 

The couple also has planted a selection of olive trees on the 

property and hopes to begin producing cured olives and olive oil 

for sale in the near future. [¶] They said they are exploring ways 

to expand their commercial enterprise, given the potential they 

believe exists in the Conejo Valley. [¶] ‘We wanted to try it for a 

few years, and initially it was more of a fun thing, but now we’re 

barely doing any marketing and the stuff is flying off the shelves,’ 

said Marcella.” The article observes that “the Ketelhuts’ Los 

Robles Hills Winery [is] on the list of 15 [wineries] that make up 

the Ventura County Wine Trail.” Jeffrey Ketelhut testified that 

in 2010 the Ketelhuts had become “members of the Ventura 

County Wine Trail.” 

Through the newspaper article, the Ketelhuts proclaimed 

to Ventura County residents that they were operating a 

commercial vineyard on the Property. It is understandable that 

6
homeowners, such as John Mitchell, would be alarmed by this 

development, which appeared to be a blatant violation of the 

CC&Rs’ prohibition against “any business or commercial 

activity.” Homeowners could view the article as a public 

flaunting by the Ketelhuts of their violation.

The majority opinion states, “No homeowner familiar with 

the vineyard’s operation would have had reason to suspect that 

the vineyard was being used to produce wine for sale to the 

public.” (Maj. opn., ante at p. 27.) But the newspaper article put 

the entire community on notice that the Ketelhuts were 

operating a commercial vineyard.

Moreover, the vineyard was in plain view of the 

homeowners. Richard Monson testified that, “[w]hen [he] drove 

past the Ketelhuts’ home,” he “noticed the grapevines on the 

hillside.” Because the grapevines were visible to everyone, they 

would be a continual source of aggravation to homeowners who 

objected to a commercial agricultural operation in their 

community. The majority opinion says that the vineyard was an 

“aesthetic enhancement.” (Maj. opn., ante at p. 27.) But to the 

homeowners who objected to its presence, it was an eyesore. 

The Ketelhuts’ commercial vineyard was not permissible 

because, as Board member Daily testified, “Their growing grapes 

was part of their landscape plan.” The landscape plan, which 

was approved in 2005 by the Board’s Architectural Committee 

(the Committee), did not indicate that the vineyard would be 

used to grow grapes to make wine that would be offered for sale 

to the public. In 2005 the Ketelhuts did not inform the 

Committee of this future commercial use. Had it been so 

informed, the Committee probably would not have approved the 

landscape plan.

7
Difficulties may arise in applying the majority opinion’s 

standard of whether business or commercial activity affects the 

residential character of the community. With such a vague 

standard, where does one draw the line between activity that 

affects and activity that does not affect residential character? 

This is a purely subjective determination. 

A New Meaning for CC&Rs

Traditionally, CC&Rs are restrictions and limitations on 

land use. Now at the whim of the Board, CC&Rs mean “choices, 

creativity, and recommendations.” A homeowner has a choice 

and may be creative in the use of property. The traditional 

CC&Rs have been transformed into recommendations that the 

Board may elect not to enforce. Rather than having the force of 

law, the CC&Rs have the backbone of a chocolate éclair. And, of 

course, the Board’s composition may change and there will be 

inconsistency in just how much business or commercial activity 

will be allowed. 

CC&Rs play a vital role in protecting the reasonable 

expectations of parties when they purchase land. This concept is 

lost in the majority opinion. Future buyers in the development 

should be expressly advised that business or commercial activity 

is allowed at the discretion of the Board. This may actually 

devalue the land.

Finally, to monetarily punish plaintiffs with attorneys’ fees 

is not only unfair, it is unconscionable. The Ketelhuts were the 

“first movers.” They created the entire problem by operating a 

commercial vineyard and publicizing it in the local newspaper. 

8
They are at fault and they should pay for it.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

9
Henry J. Walsh, John Nguyen, Judges

Superior Court County of Ventura

______________________________

Richland & Associates, Felipa R. Richland, in propria persona, for 

Plaintiffs and Appellants Felipa Richland Eith and Jeffrey Eith.

The Aftergood Law Firm, Aaron D. Aftergood for Plaintiffs and 

Appellants Thomasine Mitchell, John Mitchell, Philip Chang and Eileen 

Gabler; Freeman Freeman & Smiley, Steven E. Young for Plaintiffs and 

Appellants Stacy Wasserman and Morrey Wasserman.

Yoka & Smith, Christopher E. Faenza, Christine C. De Metruis for 

Defendants and Appellants Jeffrey Ketelhut and Marcella Ketelhut; 

Slaughter, Reagan & Cole, Barry J. Reagan, Gabriele M. Lashly, Michael 

Lebow for Defendants and Respondents Los Robles Hills Estates HOA, 

Michael Daily, Jeanne Yen and Frank Niesner.

10