1

Filed 1/13/21 Allen v. Mac I ntosh CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MARILYN ALLEN Cross

- c omplainant and Respondent,

v.
BARBARA G. M A CINTOSH, Cross

- d efendant;

LI REN WANG et al., Real Parties in Interest and Appellants. E073408 (Super.Ct.No. CIV217431 )
OPINION

APPEAL from the Superior Court of Riverside County. John N. Nguyen and Irma Poole Asberry , Judge s . 1 Affirmed.

1 Judge Asberry heard and granted the motion to cease/desist encroachment matter on June 11, 2019. Judge Nguyen heard and denied the motion for attorney’s fees on August 26, 2019.2

Liren Wang, et al., in pro per., for Real Parties in Interest and Appellants. Law offices of J. Steven Kennedy and Steven Kennedy for Cross

- c omplainant and Respondent. Liren Wang 2 appeals from an order compelling him to cease and desist trespasses on a portion of a parcel of land owned by him, which portion is dedicated for use as a pet cemetery, and from an order denying his motion for attor ney ’ s fees incurred in opposing the motion for attorney’s fees filed by Marilyn Allen, an interested party and owner of a pet interred in the pet cemetery plot. Wang complains that laches should have been applied to bar Allen’s application for the cease and desist order, and claims that because the trial court had denied Allen’s motion to amend attorney’s fees, he was the prevailing party, entitled to his own atto rney’s fees. We affirm.
B ACKGROUND This case was borne out of a conditional use permit and d eclaration of d edication for a portion of land originally owned by the late Josephine Fisher, dedicated for use as a pet cemetery , which was later acquired by Barb ara M a cIntosh in 1991. Fisher did not disclose to M a cIntosh the dedication. In 199 1 , Marilyn Allen, an owner of burial plot in the pet cemetery, provided M a cIntosh with a copy of the dedication, and M a cIntosh, in
turn, filed two lawsuits: one against Fi sher to void the d eclaration of d edication and the conditional use permit issued by the City of Lake Elsinore restricting the property to a pet

2 The notice of appeal was filed on behalf of Wang and one Hui Jhou (spelled as Zhou throughout the record), but Z hou has abandoned the appeal. We decide this case as to Wang, only.3

cemetery , and one against the title company that failed to discover the use dedication

. Allen appeared in that action as a cross

- complainant to protect her interests as a pet

owner. In settlement of th at suit, in 2002, the parties executed a settlement agreement , by which the original dedication was voided, and Covenants, Conditions and Restrictions (CCRs) , permanently restricting the use of that portion of the land to use as a pet cemetery in perpetuity , and binding on all owners present and future , were agreed to

. Other terms of the settlement agreement, also incorporated into the CCRs, included a provisio n for the construction of a fence surrounding the pet cemetery, which would have gates for which pet owners would have keys to facilitate access to the pet cemetery. Other provisions related to maintenance, landscaping, repair and upkeep of the pet

cemete ry. The CCRs specified that they constituted an equitable servitude and that all of the CCRs shall run with the land. The CCRs were duly recorded pursuant to the settlement agreement and judgment, and provided that all persons identified as pet owners (as well as their heirs, etc.) would have all the protections afforded by Health and Safety Code

s ection 9700, and provided that the provisions of that section shall not be used by any owner of the property to change t he use of the pet cemetery. Further, the agreement provided that the portion of the property designated as “Pet Cemetery” shall be permanently restricted to use as a pet cemetery, and that a conditional use permit would4

be obtained by the parties to allow such use in perpetuity. The agreement permitted the development of other portions of the land designated as vacant land. Paragraph 12 of the judgment provided that pet owners as well as the City of Lake Elsinore have the right to enforce the agreement; a similar provision was included in the
CCRs. P aragraph 17 provided that any owners would cause maintenance to be performed without parking any vehicles over the area were pets are buried, including the building of a fence around the cemetery, and paragra ph 19 provided future sales of the property shall be subject to the judgment , and included the specific requirement that any future purchasers or owners of the property shall be responsible for the maintenance, upkeep and repair of the p et c emetery, no les s than weekly. At some point possibly in 2013 or 2014 , Liren Wang and Hui Zhou purchased the property from M a cIntosh, although the record is unclear as to the date of the transfer or the terms of the transfer , aside from what Wang asserted in his d eclarat ion in o pposition

to a m otion for a c ease and d esist re t respass . 3 Wang acknowledge d in that document

3 The record is unclear about Wang’s and Zhou’s status because they failed to include record c ites in the Appellant’s Opening Brief or the exhibits to his filings in the trial court which might have clarified their status. We thus have no evidence of their ownership interests in the property, nor the date it was acquired. The Respondent’s Brief i ndicates that the date of the transfer of ownership was in 2013, citing to Wang’s and Zhou’s opposition to the motion for a cease and desist re t respass proceeding , but that document reflects that Wang purchased the property in 2014. Normally, a defective brief such as this could have been stricken for noncompliance with California Rules of Court, rule 8.204(a)(1)(C). (See Cal. Rules of Court, rule 8.18.) However, that would merely delay the already protracted case. Where Wang and Zhou make factual asse rtions in their brief without appropriate record references, we may disregard them. ( Liberty National Enterprises, L.P. v. Chicago Title Ins. (2011) 194 Cal.App.4th 839, 846.)5

that in the same year Allen contacted him about the nonconforming use of the property in 2014, although the record does not include the declaration from which he quotes , apparently appended to Allen’s motion for appointment of a receiver, because he did not include it in the record on appeal. In December 2016, Allen filed a motion for an o rder to s how c ause re a ppointment of r eceiver for n on - c ompliance with the j udgment, alleging that the owners have failed to maintain the pet cemetery as required by the judgment and CCRs, which were a matter of record. In opposition, Wang and Zhou filed a special opposition, challenging the court’s jurisdicti on over them only, on the grounds they were not parties to the original action giving rise to the CCRs. On February 15, 2017, t he trial court concluded it had jurisdiction over Wang and Zhou as subsequent owners under the term s of the CCRs, and , because W ang and Zhou made no substantive opposition to the appointment of a receiver, the court found Wang and Zhou were in violation of the judgment, granted Allen’s application, and ordered Wang and Zhou to deliver possession of the property to Michael West, who was appointed as receiver. Wang appealed that judgment, but the appeal was dismissed as abandoned on June 12, 2017. That judgment is now final. Allen filed a m otion for a ttorney’s f ees incurred in connection with the motion to appoint the receiver on Au gust 15, 2017, which Wang opposed on the ground the trial court lacked jurisdiction over Wang and Zhou, and argued that because Allen waited 14 years to demand fence installation, she was barred by laches and the statute of limitations.6

On November 29, 20 17, the trial court granted Allen’s motion, awarding fees in the amount of $12,467.50. In the meantime, the receiver was also experiencing difficulty in working with Wang on bringing the p et c emetery into compliance. One item that remained out of complia nce was the lack of a fence around the p et c emetery as required by the original judgment, to prevent vehicles from driving over a portion of the cemetery in seeking access to and from the street. Wang was not in agreement. Allen filed a motion re f ailure

to c omply with c ourt’s o rder a ppointing r eceiver, detailing actions taken subsequent to the date of the original order appointing the receiver and the original award of attorney’s
fees. On September 25, 2018, a t the hearing on the motion re noncompliance with the order appointing receiver , Allen again referred to the problem of vehicles using the front section of the property, which belongs to the pet cemetery, as a driveway. She also mentioned that juveniles were going onto the property to smoke marijua na and had caused damage on the premises. The court instructed Allen that the issue was not properly before it, and suggested that as it respected trespassing issues, she should present that to the court in writing. In the meantime, t he court ordered Wang to comply with the requirement to build the fence because that provision of the CCRs was not personal to M a cIntosh , but, instead, was binding on all subsequent owners. That order is final.7

On April 8, 2019, Allen file d a motion for amended at torney’s fees, for fees incurred from the dated of the original order through July 31, 201 8 , at which point she substituted in propria person in the action. In Allen’s motion, she pointed out that tow trucks from the towing business behind the pet cemeter y were driving over a portion of the cemetery and the lack of a functional gate impaired pet owners who wished to visit the cemetery. Additionally, headstones for Allen’s pet’s grave as well as other graves had been moved, and other items previously order ed were still incomplete. Wang opposed the motion. On April 16, 2019, Allen filed a m otion for e ncroachment/ t respass c ease and d esist o rder , as instructed by the trial court at the earlier September 2018 hearing, to stop vehicles from entering or exiting across the front portion of the pet cemetery property, other than pet owners or for pet cemetery business

. The motion explained that the owners, Wang and Zhou, had allowed vehicles going to and from the towing business to driv e across pet cemetery proper ty, encroaching on it. On May 29, 2019, Wang and Zhou opposed the motion for the cease and desist order on the ground of laches. After the hearing o n June 11, 2019, t he court heard both the motion for amended attorney’s fees and the motion for the cease and desist order

. T he court denied the motion for amended attorney’s fees on the ground that Allen did not prove the fees were incurred to enforce the CCRs, and because there was no declaration from counsel to support the fees sought.8

As for the motion f

or the encroachment/trespass cease and desist order, the court concluded there was no laches because any delay by Allen in raising the issue of trespass was excused where she was under no obligation to monitor the property, and granted the order as against the owner. On July 22, 2019 , 4 Wang and Zhou made a motion for attorney ’ s fees based on the fact the court denied Allen’s motion for an amended fee order. On August 26, 2019, the court heard the motion, and, after taking the matter under submission, den ied it because the attorney’s fees were not incurred to insure the maintenance and upkeep of the pet cemetery, as provided in the attorney fee provision of the 2002 CCRs and judgment. On July 31, 2019, Wang and Zhou filed a notice of appeal from the order granting the cease and desist order respecting the trespass and encroachment issue. On September 17, 2019, Wang and Zhou filed a notice of appeal from the order denying their motion for attorney’s fee.
D ISCUSSION 1. The Trial Court Properly Granted Allen’s Motion for a Cease and Desist Order Respecting the Trespass. Wang and Zhou argue that the trial court erred in granting Allen’s cease and desist order because of her delay in bringing the motion , constituting laches

. We disagree.

4 Because Wang and Zhou did not provide a conformed copy of the motion in the Appellant’s Appendix, it was necessary for us to verify the actual filing of the motion by cross - referencing with the r egister of a ctions.9

We begin by obser ving that the briefing has not been particularly helpful on this issue

. The narrow question posed in this case is whether Allen prejudicially delayed the bringing of her motion for a cease and desist order respecting a violation of her rights (and those o f other pet cemetery plot owners) under the CCRs , wh ere the CCRs run with the lan d, were duly recorded prior to Wang and Zhou acquir ing the property, and which was binding on all owners in perpetuity.

“‘ Laches is an unreasonable delay in asserting an equi table right, causing prejudice to an adverse party such as to render the granting of relief to the other party inequitable. ’ [Citation]” ( Nicolopulos v. Superior Court (2003) 106 Cal.App.4th 304, 312.) A civil action seeking injunctive relief is equitab le in nature. ( People v. Sangiacomo (1982) 129 Cal. App. 3d 364, 367.) “The affirmative defense of laches may be applied to bar relief to a plaintiff who has delayed unduly in seeking equitable relief.” ( Comm. to Save the Beverly Highlands
Homes Ass ’ n v. Beverly Highlands Homes Ass ’ n (2001) 92 Cal.App.4th 1247, 1266, citing Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal. App.3d 257, 265.) The existence of laches is generally a factual question, and the trial court is give n great discretion in determining whether to apply laches to bar relief. ( Concerned Citizens of Palm Desert, supra, 38 Cal.App.3d at p. 265.) The key question is whether defendants have demonstrated prejudice, making it unjust to grant relief to plaintiffs. ( San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607.) “‘ Mere lapse of time, other than that10

prescribed by [ statutes of limitations ] , does not bar relief. ’ [Citation.]” ( Gerhard v. Stephens (1968) 6 8 Cal.2d 864, 904.) “ The fact that determination of a controversy involves an investigation of rights originating many years past does not render a claim stale. ” ( Maguire v. Hibernia S. & L. Soc . (1944) 23 Cal.2d 719, 736

- 737.) This is particularly true when rights to enforce CCRs, which are operative in perpetuity, are involved. A covenant is an obligation , which, when “ contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land. ” (Civ. Code § 1460.) A covenant that runs with the land w ill “. . . bind the assigns o f the covenantor and [. . . ] vest in the assigns of the covenantee, in the same manner as if they had personally entered into them.” (Civ. Code, § 1460.) “The primary characteristic of a covenant running with the land is that both liability upon it and e nforceability of it pass with the transfer of the estate.” ( Anthony v. Brea Glenbrook Club (1976) 58 Cal.App.3d 506, 510.) “The benefits or burdens pass by implication of law rather than under principles of contract.” ( Ibid. )

“ At common law , enforceable equitable servitudes and covenants running with the land were confined to restrictions that benefited or burdened land. ” ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development ( US ) , LLC (2012) 55 Cal.4th 223, 253

- 254,11

see also Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 352

– 355.)
Th is rule still applies

. W hether it is considered a covenant running with the land or an equitable servitude, a restriction enforceable under these doctrines and the statutes embodying them must involve a restriction governing land use. ( Nahrstedt v. Lakeside Village Condominium Assn

. (1994) 8 Cal.4th 361, 380 [“[E]quitable servitudes permit courts to enforce promises restricting land us e when there is no privity of contract

. . . .”]; see also, Anthony v. Brea Glenbrook Club (1976) 58 Cal.App.3d 506, 510 .) The CCRs recorded in this case specifically provide that they run with the land and operate as an equitable servitude. There is pre cious little authority specifically governing the limitations period on one’s right to enforce CCR s , and Wang and Zhou cite none. Code of Civil Procedure, section 336, provides a five year statute of limitations for violations of a restriction on the

use of land, such as a covenant, and indicates the time runs from the date the violation was discovered , inso fa r as CCRs remain enforceable indefinitely. However, the order appealed from here was an equitable order for injunction based on a trespass arising f rom a violation of CCRs, and the point asserted in the trial court as well as in this appeal is that Allen was guilty of laches in bringing the equitable action to cease and desist the trespass. There is a three year statute of limitations for actions for trespass upon or injury to real property. (Code Civ. Proc. § 338, subd. (b).) This action was brought within three years of the trespass incidents alleged.12

As for the violations of covenants, c ase law suggests that the statute of limitations to enforce affirmative covenants running with the land, and, in particular, duties included in a declaration of CCRs, commences when a demand for performance is made. ( Cutujian v. Benedict Hills Estates Ass n. (1996) 41 Cal.App.4th 1379, 1387.) In Cutujian, the court applied a four

- year limitations period, commencing with plaintiff’s
demand. ( Ibid. )
I rrespective o f which rule is applied , the record here demonstrates the action was timely where Allen made c ontinuous demands for performance, culminating in the court’s 2017 order to comply with the receiver’s directions (and to which no laches defense was offered), followed by the 2018 order directing Wang and Zhou to erect the fence. The actions taken by All en on the covenant violations were taken within five years of the 2018 order which was violat ed

. Although Allen was under no obligation to act as the pet cemetery CCRs enforcement officer, she diligently informed Wang and Zhou of the CCRs requiring mainte nance very soon after they acquired ownership, including the need to build the fence and prevent vehicles from using a portion of the pet cemetery to access the towing business that was situated on the rear of the lot. She worked with the receiver to ensu re that repairs and maintenance and other requirements of the CCRs were carried out, in conformity with the 2002 judgment, notwithstanding the fact she was under no duty to do

so.13

Th e cease and desist action, based on the trespass , her second action again st Wang and Zhou, was filed in April 2019, and was timely under both the statute of limitat i ons and the Cutujian analysis where the order directing Wang and Zhou to erect the fence was made in response to Allen’s unrequited complaints about vehicles encroa ching on the premises within either the five year period of Code of Civil Procedure section 33 6 or the four year period analyzed in Cutujian , or the three year period governing actions for trespass

. As for Wang and Zhou , equity is not on their side. Th ey have persistently resisted complying with their obligations under the CCRs, as well as the judgment of the superior court directing the erection of the fence, so they come to this court with unclean hands. ( Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 445.) The trial court correctly ruled that Allen was not barred by principles of laches from bringing the motion for an order to cease and desist the trespass and/or encroachment on the pet cemetery. 2. The Trial Court Properly Denied Wang’s Motion for Attorney’s Fees. Wang and Zhou argue the court improperly denied their motion for attorney’s fees incurred in opposing Allen’s motion for an amended order for attorney’s fees. We disagree. The normal standard of review of an orde r relating to attorney’s fees is abuse of
discretion. ( Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.) “ However, de novo review of such a trial court order is warranted , where the14

determination of whether the criteria f or an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. ” ( Connerly v. State Personnel Bd . (2006) 37 Cal.4th 1169, 1175, citing C arver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) Wang and Zhou ostensibly claim e ntitlement to attorney’s fees as prevailing parties, without ever acknowledging Cod e of Civil Procedure section 1021 , which provides: “Except as attorney’s fees are specifically provided for by statute, the mea sure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” Code of Civil Procedure section 102 1 is a codification of the rule that is commonly referred to as the “American Rule,” which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. (See, e.g., Trope v. Katz (1995) 11 Cal.4th 274, 278.) Civil Code section 5 975 is one exception to the rule, provid ing, in part , that in an action to enforce the governing documents of CCRS , the prevailing party shall be awarded reasonable attorney’s fees and costs. ( Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142.) But a motion to amend a prior attorney fee award is not an action to enforce CCRs, nor was Wang and Zhou’s opposition to the motion capable of description in terms of Civil Code section 5975. Thus , it cannot be said that t heir motion constituted an “action to enforce the governing documents ” respecting the CCRs’ such as would entitle them to attorney’s15

fees. Moreover, because they were the losing parties in the underlying proceeding to appoint the receiver to enforce the C CRs, Wang and Zhou were not entitled to attorney’s fees under the terms of either the CCRs or Civil Code section 5975. Wang and Zhou make no attempt to argue they are entitled to attorney’s fees under the CCRs or that they were prevailing parties in an ac tion to enforce the obligations imposed on them by the CCRs. They have cited no authority for the proposition that opposing a motion relating to another party’s attorney’s fee request qualifies as being a “prevailing party.” Instead, they argue that, “NO WHERE in CC&R says the action that can be awarded attorney fees must be related to the preserving the Pet Cemetery and ensuring that the Cemetery is maintained to the level of a human cemetery.” [ Sic ] Their focus is misdirected. The real question to be addressed in a motion for attorney’s fees is whether the party claiming the fees has demonstrated either a contractual or statutory right to seek such a recover. After all, c ourts “ have uniformly held that the party moving for statutory attorney fees or s anctions has the burden of proof. ” ( Corbett v. Hayward Dodge, Inc

. (2004) 119 Cal.App.4th 915, 926, citing Weisman v. Bower (1987) 193 Cal.App.3d 1231,
1236 .) Wang and Zhou have not met their burden. Absent any other authority giving rise to a right to seek attorney’s fees, the trial court correctly concluded they were not so entitled in denying their motion. There was no abuse of discretion.16 D ISPOSITION The j udgment is affirmed. Allen is entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur: McKINSTER J.
MILLER J.