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Filed 1/13/21 Allen v. MacIntosh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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-complainant and 

 Respondent,

v.

BARBARA G. MACINTOSH,

 Cross-defendant;

LIREN 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, Judges.

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-complainant and 

Respondent.

Liren Wang2 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 attorney’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 attorney’s fees. We affirm.

BACKGROUND

This case was borne out of a conditional use permit and declaration of dedication 

for a portion of land originally owned by the late Josephine Fisher, dedicated for use as a 

pet cemetery, which was later acquired by Barbara MacIntosh in 1991. Fisher did not 

disclose to MacIntosh the dedication. In 1991, Marilyn Allen, an owner of burial plot in 

the pet cemetery, provided MacIntosh with a copy of the dedication, and MacIntosh, in 

turn, filed two lawsuits: one against Fisher to void the declaration of dedication 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 Zhou has abandoned the appeal. We decide this case as 

to Wang, only.
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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 that 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 

provision 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 

cemetery. 

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 

section 9700, and provided that the provisions of that section shall not be used by any 

owner of the property to change the 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 would 
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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. Paragraph 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 paragraph 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 pet cemetery, no less than weekly.

At some point possibly in 2013 or 2014, Liren Wang and Hui Zhou purchased the 

property from MacIntosh, 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 declaration in opposition 

to a motion for a cease and desist re trespass.

3 Wang acknowledged in that document 

3

 The record is unclear about Wang’s and Zhou’s status because they failed to 

include record cites 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 

indicates 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 trespass 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 assertions 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.)
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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 order to show cause re appointment 

of receiver for non-compliance with the judgment, 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 

jurisdiction over them only, on the grounds they were not parties to the original action 

giving rise to the CCRs. 

On February 15, 2017, the trial court concluded it had jurisdiction over Wang and 

Zhou as subsequent owners under the terms of the CCRs, and, because Wang 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 motion for attorney’s fees incurred in connection with the motion to 

appoint the receiver on August 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. 
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On November 29, 2017, 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 pet cemetery into compliance. One item that remained out of 

compliance was the lack of a fence around the pet cemetery 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 failure

to comply with court’s order appointing receiver, 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, at 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 marijuana 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, the court ordered Wang to comply 

with the requirement to build the fence because that provision of the CCRs was not 

personal to MacIntosh, but, instead, was binding on all subsequent owners. That order is 

final.
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On April 8, 2019, Allen filed a motion for amended attorney’s fees, for fees 

incurred from the dated of the original order through July 31, 2018, 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 cemetery 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 ordered were still incomplete. Wang 

opposed the motion. 

On April 16, 2019, Allen filed a motion for encroachment/trespass cease and 

desist order, 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

drive across pet cemetery property, 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 on June 11, 2019, the court heard both 

the motion for amended attorney’s fees and the motion for the cease and desist order. 

The 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. 
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As for the motion for 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, denied 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. 

DISCUSSION

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 register of actions. 
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We begin by observing 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 of other pet cemetery plot owners) under the CCRs, where the CCRs run with 

the land, were duly recorded prior to Wang and Zhou acquiring the property, and which 

was binding on all owners in perpetuity. 

“‘Laches is an unreasonable delay in asserting an equitable 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 equitable 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 given 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 that 
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prescribed by [statutes of limitations], does not bar relief.’ [Citation.]” (Gerhard v. 

Stephens (1968) 68 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 will “. . . bind the assigns of 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 enforceability 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, 
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see also Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 352–355.) 

This rule still applies.

Whether 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 use 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 precious little authority specifically governing the limitations period on 

one’s right to enforce CCRs, 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, insofar as CCRs remain enforceable indefinitely. However, the order 

appealed from here was an equitable order for injunction based on a trespass arising from 

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.
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As for the violations of covenants, case 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 Assn. (1996) 41 Cal.App.4th 1379, 1387.) In 

Cutujian, the court applied a four-year limitations period, commencing with plaintiff’s 

demand. (Ibid.) 

Irrespective of which rule is applied, the record here demonstrates the action was 

timely where Allen made continuous 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 Allen on the covenant violations were taken within five

years of the 2018 order which was violated.

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 

maintenance 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 ensure 

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. 
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The cease and desist action, based on the trespass, her second action against Wang 

and Zhou, was filed in April 2019, and was timely under both the statute of limitations 

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 encroaching on the 

premises within either the five year period of Code of Civil Procedure section 336 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. They 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 order 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 the 
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determination of whether the criteria for 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 Carver v. Chevron 

U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) 

Wang and Zhou ostensibly claim entitlement to attorney’s fees as prevailing 

parties, without ever acknowledging Code of Civil Procedure section 1021, which

provides: “Except as attorney’s fees are specifically provided for by statute, the measure 

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 1021 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 5975 is one exception to the rule, providing, 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 their motion constituted an “action to enforce the 

governing documents” respecting the CCRs’ such as would entitle them to attorney’s 
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fees. Moreover, because they were the losing parties in the underlying proceeding to 

appoint the receiver to enforce the CCRs, 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 action 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, “NOWHERE 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, courts “have uniformly held that the party moving for statutory 

attorney fees or sanctions 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.
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DISPOSITION

The judgment 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.