Filed 3/1/24

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

RICHARD C. COLYEAR, 

Petitioner and 

Respondent.

v.

ROLLING HILLS COMMUNITY 

ASSOCIATION OF RANCHO 

PALOS VERDES et al.,

Plaintiffs and Appellants.

 B308382

 (Los Angeles County

 Super. Ct. No. BS150539)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Christopher K. Lui, Judge. Affirmed in part and 

reversed in part.

 Pursuant to California Rules of Court, rules 8.1105(c) and 

8.1110, this opinion is certified for publication with the exception of 

parts B through E of the Discussion.
2

Horvitz & Levy, David M. Axelrad, John A. Taylor, Jr.;

Kaufman, Dolowich & Voluck, Richard C. Greenberg, Samantha F. 

Lamberg, and Michael J. Weinberger, for Plaintiffs and 

Appellants. 

Greenberg Glusker Fields Claman & Machtinger, Ricardo P. 

Cestero; Chuck & Tsoong, Stephen C. Chuck; Greines, Martin, 

Stein & Richland, Kent L. Richland, David E. Hackett, and Stefan 

C. Love, for Petitioner and Respondent. 

____________________________

The Rolling Hills Community Association of Rancho Palos 

Verdes (the Association) appeals the judgment in favor of Richard 

C. Colyear on his claim for declaratory relief, an injunction, and

damages for breach of fiduciary duty arising out of the 

Association’s tree-trimming covenant. Colyear cross-appeals the 

denial of his claim for quiet title. In the published portion of this 

opinion, we affirm the judgment as to the claim for declaratory 

relief. In the unpublished portion of the opinion, we affirm the 

judgment as to Colyear’s claim of quiet title and reverse with 

respect to the claims for injunctive relief, breach of fiduciary duty 

against the Association, and the attorney fees award against the 

Association’s individual directors. 

FACTUAL BACKGROUND 

In the mid-1930s, the Palos Verdes Corporation (PVC) 

acquired a large portion of the Palos Verdes Peninsula and began 

subdividing Rolling Hills. The community was envisioned as a 

place where residents could enjoy country living and was extolled 

for its views. Beginning in 1936, PVC carved out its first tract and 
3

recorded a declaration of covenants and restrictions regarding that 

section. Over the years, PVC annexed more tracts, each with its 

own declaration. Although the original tract and many 

subsequent tracts contained covenants permitting the Association 

to trim trees on properties to preserve views, some did not. 

As the years passed, trees grew, and view preservation 

became an issue in the community. Richard C. Colyear owned two 

parcels outside the original tract with a large garden containing 

many mature trees. Because the annexation declaration covering 

his property contained no tree-trimming covenant, Colyear 

preemptively initiated this action to obtain, among other things, a 

declaration and injunction that the trees on his property could not 

be cut. 

The trial court agreed with Colyear, relying on Citizens for 

Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 (Citizens). 

In Citizens, our Supreme Court held a covenant in a declaration 

establishing a general plan for a subdivision is binding on property 

within the subdivision if it is recorded before the execution of the 

contract of sale, describes the property, and states that it is to bind 

purchasers, even if the covenant is not in the deed. Citizens 

makes clear, however, that its ruling applies to properties 

described in the declaration at the time of sale because the owners, 

by their purchase, impliedly assent to the covenant’s terms. 

Because the tree-trimming covenant was not recorded against 

Colyear’s property when he purchased it, the court found he did 

not impliedly agree to the covenant’s terms.
4

A. Background of Rolling Hills Development

PVC acquired Lot “H,” part of the old Rancho Palos Verdes, 

in 1926. Most of the Palos Verdes Peninsula was contained within 

Lot “H,” including what is now the City of Rolling Hills. 

Rolling Hills is a planned community. At the time of its 

inception, there were no trees in Rolling Hills, with every lot 

enjoying a panoramic view of Santa Monica Bay and the local 

mountains. Rolling Hills had large lots which offered the “ideal 

outdoor life, seclusion, privacy, recreation, horseback riding, 

cultivation of fruits and vegetables[,] and the enjoyment of a 

country atmosphere, all protected by good restrictions.” (Hanson, 

Rolling Hills, The Early Years (1978) p. 24.) As further described 

by the Association’s attorney in the 1940s, “[PVC’s] project in 

these hills contemplate[d] a community development of 

refinement, contentment, rural composure, security, privacy and 

isolation . . . .” 

In 1936, the Association was incorporated with five 

volunteer directors. 

B. Recordation of Declaration 150

The first phase of the development was initiated with the 

recordation of Declaration 150 on May 14, 1936. Declaration 150 

stated that PVC “certifies and declares that it has established and 

does hereby establish the General Plan for the protection, 

maintenance, improvement[,] and development” of the land 

described in it. The General Plan set forth “the general basic and 

local restrictions, conditions, covenants, reservations, liens and 

charges upon and subject to which all lots, parcels and portions of 

said property shall be held, leased or sold and/or conveyed.” 
5

Declaration 150 contained a metes and bounds description of its 

boundaries, and it only covered a portion of Rolling Hills. 

Declaration 150 authorized the Association to interpret and 

enforce its provisions and the provisions of “any subsequent 

declaration.” (See Declaration 150 Art. I, § 4, Art. II, § 2, subd. (p),

Art. IV, § 11.) Any landowner likewise could enforce the General 

Plan against other owners. Declaration 150 stated, “[A]ny lot 

owner subject to the jurisdiction of the Association” may seek an 

abatement of a violation of any other lot owner of any restrictions, 

condition, or covenant in this declaration. (Art. IV, § 12.) 

Article IV, section 5 of Declaration 150 provided for the 

annexation of future tracts. Such annexed tracts would be 

“subject to restrictions, conditions, covenants, reservations, liens, 

or charges set forth in a Declaration of Restrictions.” Upon the 

recording of such declarations, “the Association shall then and 

thereafter have power to do and perform any and all of the acts, to 

fix, impose and collect charges, assessments and dues from the 

owners of said property as therein provided[,] and to grant said 

owners membership in the Association as therein agreed to and 

provided.” 

Article II, section 2 of Declaration 150 provided that the 

Association’s powers extended to any property and owner in its 

jurisdiction and, according to appellants, reflects PVC’s intent to 

extend the General Plan to the entire Rolling Hills community. 

The Tree-Cutting Covenant (Tree CC) is contained in Article 

I, section 11 of Declaration 150, which provided in relevant part: 

“The Association shall have the right at any time to enter on or 

upon any part of said property for the purpose of cutting back 

trees or other plantings which, in the opinion of the Association, is 
6

warranted to maintain and improve the view of, and protect, 

adjoining property.” 

A.E. Hanson, the first general manager of PVC, recalled in 

his memoir Rolling Hills, The Early Years, supra at page five, that 

at the time of development, all of Rolling Hills was put “under 

general basic restriction” when Declaration 150 was signed. 

C. Annexation of Additional Tracts Under Separate 

Declarations

Over the years, additional tracts were annexed. Today, 

Rolling Hills consists of 57 tracts, each added by its own numbered 

declaration and agreement with PVC. In 1937, PVC annexed the 

first additional tract with Declaration 150-A. Declaration 150-A 

expressly stated it was subject to the same restrictions and 

conditions as Declaration 150. Another area, referred to as the 

“Flying Triangle,” was added in 1939 with Declaration 160. From 

1941 to 1944, additional tracts were added, governed by 

Declarations 150-B through 150-F. These declarations contained 

the same Tree CC as Declaration 150. 

In January 1944, the Board of the Association adopted a 

Resolution allowing it to record agreements for the declaration of 

covenants in conformity with Declaration 150.1 The Resolution 

provided that the Association could, “from time to time, [ ] execute 

and deliver, and cause to be recorded in the office of the County 

Recorder of the County of Los Angeles, an agreement between this 

[A]ssociation and [PVC] for the declaration of establishment of 

basic restrictions, conditions, covenants, reservations[,] liens, 

charges and certain local restrictions in conformity with said 

Declaration No. 150, . . . .” 

1 A similar resolution was adopted in 1949.
7

Declaration 150-M, applicable to Colyear’s property, was 

recorded on May 29, 1944, and does not contain the Tree CC. In 

1967 and 1970, Colyear purchased his parcels at 35 and 37 Crest 

Drive. This land is not within the boundaries described in 

Declaration 150. Neither Colyer’s title insurance policies nor his 

deeds contain a reference to Declaration 150; rather, the title 

insurance reports reference Declaration 150-M. Currently, 

Colyear’s property has many mature trees and a large garden. 

D. Inconsistencies Result in the 1947 Swaffield Study

Roland Swaffield, an attorney and Rolling Hills resident, 

prepared a study in 1947 regarding inconsistencies between

Declaration 150 and the annexation declarations. Swaffield 

observed that there were questions concerning the scope and 

applicability of the various declarations, and there was a “wide 

divergence of these restrictions in many instances.” 

In conjunction with this report, Swaffield produced an 

analysis of the differences in the restrictions, with particular 

emphasis on Declaration 150-AF. Declaration 150-AF is identical 

to Declaration 150-M in its preamble and in its omission of the 

Tree CC. Swaffield’s analysis observed that in the tract governed 

by Declaration 150-AF, “the Association would not have the same 

power concerning these subjects” discussed in the omitted sections 

“as it possesses in relation to the original Rolling Hills area under 

Declaration 150.” In November 1947, Swaffield asked Kelvin 

Vanderlip, PVC president, why the Tree CC (codified in section 

11), among other sections, had been omitted from Declaration 150-

AF. 

Vanderlip responded that PVC intentionally removed those 

provisions: “[P]ractically all of the provisions which were contained 
8

in Declaration No. 150, . . . were removed by our attorneys as far 

back as the Flying Triangle Declaration [(Declaration 160)] for the 

purpose of simplification.” Vanderlip stated that PVC would not 

“object to the modification of [Declaration 150-AF]” to conform it to 

Declaration 150. 

In 1948, after evaluating possible modifications to the 

declarations, a draft modification was prepared, adding the Tree 

CC to Declaration 150-AF. The parties intended to use this 

modification as a model for other declarations in order to bring 

various parcels into conformity with Declaration 150. A Master 

Agreement was prepared in 1950 to update the annexation 

template. However, the parties realized that modifying the 

declarations would require 70 percent concurrence of Association 

members. The modifications never took place, and no modified 

declarations were ever recorded. 

Later declarations, those recorded from 1949 through 1969, 

included the Tree CC. 

E. Russell v. Palos Verdes Properties (1963) 218 

Cal.App.2d 754 (Russell)

There are a number of cases involving covenants, some 

concerning covenants in Rolling Hills specifically. Russell, a case 

predating Citizens, involved Rolling Hills subdivision restrictions 

requiring neighborhood association permission before subdividing 

any parcel. (Russell, supra, 218 Cal.App.2d. at p. 757.) Russell 

held that personal covenants, which do not run with the land, may 

be enforced against transferees acquiring the property with actual 

or constructive notice2 of the restrictions when the property was 

2 Proper recordation of a real property instrument is necessary to 

impart constructive notice of its contents. (Civ. Code, §§ 1213, 1214.) 
9

conveyed to them, when failure to enforce the restrictions would 

produce an inequitable result. (Id. at pp. 762–764.) 

Although its holding is not on point here, Russell made 

various non-binding observations about the interplay between 

Declaration 150 and the subsequent annexation declarations. At 

issue in Russell was Declaration 150-W.3 (Russell, supra, 218 

Cal.App.2d at p. 765.) Russell observed that Declaration 150 

created “a general plan of restrictions.” When PVC sold 

subsequent parcels, “before conveying the same and for the future 

use of the land,” PVC “imposed on each the above restrictions in 

the form of separate Agreements and Declarations between it and 

[the] Association.” (Id. at p. 758.) Russell further observed that

the declarations applicable to the parcels that were sold

(Declarations 150-A through 150-V) were intended to establish a 

general plan for the development, improvement, and protection of 

the subdivision. (Id. at p. 759.) With Declaration 150-W’s 

reference to the General Plan in Declaration 150, Russell indicated 

the land it annexed into Rolling Hills became “subject to the same 

restrictions.” (Id. at p. 765.) 

William Kinley, the Association’s counsel at the time of the 

Russell decision, relied on the decision to assert that “all parcels in 

Rolling Hills are subject to [Declaration] 150 because of the 

reasoning in the Russell case” and “everybody was covered” by the 

If an instrument cannot be located by searching the “grantor” and 

“grantee” indices of the public records, the instrument does not 

constitute constructive notice and later bona fide purchasers or 

encumbrances are not charged with knowledge of its existence. (See 

Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 297.)

3 Declaration 150-W’s simplified restrictions list also omits the 

Tree CC. 
10

General Plan. Kinley believed Russell established that “all of the 

Declarations of Restrictions were to be considered as a part of 

Declaration [ ] 150” and “not as separate and independent 

declarations of restrictions.” Nonetheless, Kinley informed his 

successor, Sidney Croft, who became the Association’s attorney in 

1988, that different restrictions had been placed on different 

tracts. 

F. Citizens for Covenant Compliance v. Anderson (1995) 

12 Cal.4th 345 (Citizens)

In Citizens, our Supreme Court held that a declaration of 

restrictions for a subdivision need not be cited in a parcel’s deed to 

be effective if certain conditions were met. (Citizens, supra, 12 

Cal.4th at p. 349.) Citizens required that the declaration be

recorded before the execution of the contract of sale, describe the 

property it is to govern, and state that it is to bind all purchasers 

and their successors. (Ibid., italics added.) Citizens denounced the 

“crazy-quilt pattern” of restrictions that resulted from a contrary 

rule, which occurred when “the developer of a subdivision records 

a uniform plan of restrictions intended to bind and benefit every 

parcel alike,” but “implementation of the plan depends upon the 

vagaries of the actual deeds, and whether they contain at least a 

ritualistic reference to restrictions of record.” (Id. at pp. 360–363.) 

Citizens reasoned that “if the restrictions are recorded before the 

sale, the later purchaser is deemed to agree to them . . . even if 

there is no additional reference to them in the deed.” (Id. at 

p. 363.)
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G. Nunn v. Rolling Hills Community Association of 

Rancho Palos Verdes (Super. Ct. Los Angeles, 2004, 

No. BC314522) (Nunn)

In Nunn, the superior court rejected the contention that a 

parcel subject to Declaration 150 could claim exemption from its 

Tree CC provisions because the party seeking to enforce those 

provisions against it was not so encumbered. 

Nunn involved two adjacent homeowners who disputed 

whether the Tree CC applied to their property. The Lorigs, who 

were uphill to the Nunns, sought to have the Association trim the 

Nunns’ trees, but the Nunns sought an injunction to prevent the 

trimming. The Nunns’ property was within the original 

boundaries of Declaration 150, while the Lorigs’ property was 

outside the boundaries of Declaration 150 but within Declaration 

150-AE. Declaration 150-AE did not contain the Tree CC. 

The court observed that the General Plan provision 

authorizing the Tree CC was contained in a declaration by PVC 

(through Declaration 150) when it owned “what is now the Nunn 

property and the Lorig property. Said provision is contained in 

documents in the chain of title of the Nunn property but is not 

contained in a conveyance or document in the chain of title of the 

Lorig property.”

The Nunns argued that while the Tree CC was in their 

chain of title, the Tree CC was not in the Lorigs’ chain of title such 

that the covenant lacked mutuality and could not be enforced 

against them. The court disagreed and found the Nunns were 

bound by the Tree CC because it was “contained in a declaration 

that describes the Nunn property, was recorded before the Nunn 

property was sold, states that it is to bind all purchasers and their 

successors and was recorded to give subsequent purchasers 
12

constructive notice of it. . . . The Nunns . . . had constructive 

notice that trees upon their property might be trimmed to 

maintain the view of, and protect, adjoining property.” As a result, 

the court denied the Nunns’ request for preliminary injunction. 

The Nunns’ writ petition was summarily denied by this court. 

H. Subsequent Resolutions Attempt to Correct View 

Impairment Provisions

Given the inconsistencies and uncertainties regarding the 

enforceability of view restrictions, beginning in the 1990s, as trees 

had matured, residents complained that Rolling Hill’s blank 

canvas had become an area of “obscene landscaping.” Responding 

to community support for view protection, the Association 

attempted to create conformity among the divergent declarations. 

The Association adopted several resolutions as follows: 

Resolution 166. This resolution, adopted in 1997 and 

drafted by Croft, permitted any Rolling Hills resident to apply for 

the Association to exercise its tree-trimming authority to correct 

view impairments. Resolution 166 does not distinguish between 

parcels that have a Tree CC and those that do not. 

Resolution 181. In 2002, the Association limited view 

impairment correction to cases involving mutuality of deed 

restrictions. The resolution adopted a policy accepting

applications only when “the applicant and the affected parcel are 

subject to the same Deed Restrictions.”

The Association opted to require mutuality of deed 

restrictions to reduce litigation with those who, like Colyear, 

objected to having the Tree CC applied to their property. Colyear 

wrote to the Association in July 2002, informing the Association 

that his property was covered by Declaration 150-M. He asked 
13

whether the Association asserted the Tree CC was enforceable 

against his property, and the Association responded, “No. You are 

one of the few ‘miscellaneous’ parcels who are not protected.” 

Resolution 193. In response to the Nunn litigation, Croft 

advised that the Tree CC need not be in the chain of title to be 

binding. Croft asserted that Declaration 150’s Tree CC applied to 

all properties in the Association’s boundaries. 

In 2006, Resolution 193 was issued. It stated that 

Declaration 150 applied to “some, if not all” properties in Rolling 

Hills. Resolution 193 required that the object of the view 

complaint be subject to the Tree CC. But, as amended in 2009, 

this resolution permitted any owner to file an application. 

Resolution 220. This June 2012 resolution replaced 

Resolutions 166, 181, and 193. Recognizing the Tree CC applied to 

“some, if not all, properties in the City of Rolling Hills,” it stated it 

was the Association’s “policy to encourage resolution of view 

impairment issues between the parties who are directly involved.” 

The resolution permitted any property owner to file a view 

application, regardless of the owner’s governing declaration. 

PROCEDURAL BACKGROUND

A. Petition and Complaint

This action originated in 2015, when a neighbor of Colyear 

filed a view application under Resolution 220 against another 

neighbor. However, two of Colyear’s trees appeared in a 

photograph of the view application, so Colyear preemptively sued 

the neighbor as well as the Association and several of its board 

members to enjoin them from cutting his trees, for declaratory 

relief that the Tree CC did not apply to his property, and for quiet 

title and breach of fiduciary duty against the board and 
14

Association. The neighbor successfully challenged Colyear’s 

lawsuit as a SLAPP action, but the action proceeded against the

remaining defendants. (Colyear v. Rolling Hills Community 

Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 123, 

137.)

After several intermediate proceedings, Colyear filed his 

operative Third Amended Petition and Second Amended 

Complaint in June 2018, stating claims for declaratory relief, 

injunctive relief, quiet title, slander of title, and breach of fiduciary 

duty against the Association and the director defendants.4 

Colyear sought to enjoin the Association from relying on 

Resolution 220 and Declaration 150 to trim trees on his property

and a declaration that Declaration 150 did not apply to his 

property. 

B. Trial and Statement of Decision

After the trial court granted defendants’ motion for 

summary adjudication on the slander of title claim,5 the matter 

proceeded to a 10-day bench trial held in September 2019. 

Colyear principally argued that restrictions can only burden 

the property legally described in the restricting document, and

because Declaration 150 only described one tract, under Citizens, 

it did not burden his property. The Association argued that 

4 In addition to the Association, the operative petition named the 

Board of Directors of the Association; Board members David McKinnie, 

Joseph Heitzler, Gian Starinieri, Marcia Gold, Tom Heinsheimer, and 

Fred Lorig; and non-board member Yu Ping Liu.

5 Before trial, on July 23, 2019, Colyear dismissed without

prejudice individual director defendants Gold and Heinsheimer, and on 

August 15, 2019, dismissed Starinieri. 
15

Citizens supported its position because Declaration 150 was in 

Colyear’s chain of title through Declaration 150-M, and reasonable 

inquiry would have put Colyear on notice that Declaration 150’s 

general restrictions, including the view covenant, applied to his 

property. The Association also argued it had treated Declaration 

150 as the General Plan from the beginning and its interpretation

of the General Plan was conclusive. 

The trial court issued its Corrected Statement of Decision

and entered judgment on September 4, 2020. 

In its statement of decision, the court identified the issue as 

whether Declaration 150 was binding on properties other than 

those identified therein. The court rejected the Association’s 

contention that Russell established the governing effect of 

Declaration 150 over the entire community. The court 

distinguished Russell on the basis it did not address the Tree CC, 

did not address inconsistent provisions among the various 

recorded declarations, and assumed for purposes of the case before 

it the declarations were the same. As a result, the court found 

Russell provided no support for the Association’s argument that 

Declaration 150 was binding across the entire community. 

The trial court also conducted a linguistic analysis of 

Declaration 150-M. The court concluded Declaration 150-M did 

not incorporate Declaration 150’s terms sufficiently to impart 

notice that Declaration 150 applied to properties governed by 

Declaration 150-M. Further, extrinsic evidence, including the 

1944 resolution, the Swaffield study, as well as the Hanson book, 

confirmed that Declaration 150 was not drafted to apply clearly 

and unambiguously outside its boundaries. Further, the abortive 

attempts of the Association over the years to modify or amend the 
16

annexation declarations showed that the Association was aware of 

the inconsistencies. 

Lastly, the trial court concluded Citizens did not compel a 

different result. Citizens held that where a common plan for a 

subdivision is recorded before the properties in a subdivision are 

sold, all properties in the subdivision are bound, even where the 

deed or other documents pertaining to the sale do not mention the 

restrictions. However, Declaration 150 was not a stand-alone plan 

that expressly applied to all of Rolling Hills at the time Colyear 

purchased his home. Additionally, the CC&Rs in Citizens were 

recorded on the subject property, while Declaration 150 was not 

recorded on Colyear’s property. Thus, no “uniform plan of CC&Rs 

was ever imposed during the expansion of the community, as the 

Swaffield analysis showed years before [Colyear] purchased [his 

property].” The trial court observed, “To the extent a crazy quilt 

exists, it is a byproduct of the method by which PVC and [the 

Association] expanded the community.” 

The trial court granted Colyear’s request for declaratory 

relief and an injunction, declaring that Declaration 150 was not 

binding on Colyear’s property except to the extent any restrictions 

were restated in Declaration 150-M. The court enjoined the 

Association from enforcing or attempting to enforce the Tree CC

against Colyear’s property and from “publishing or disseminating 

in any statements or documents, including internet website 

content, indicating that the [Tree CC] applies to or may be 

enforced against the [s]ubject [p]roperty.” The court found the 

Association breached its fiduciary duty to Colyear, but denied 

Colyear’s quiet title claim, finding it unwarranted and 

“redundant” given the injunction and declaratory relief. The court
17

also entered judgment in favor of the individual defendants on the 

fiduciary duty claim.6 

On February 25, 2021, the court awarded $1.328 million in 

attorney fees to Colyear under Civil Code section 5975. 

DISCUSSION

A. Applicability of the Tree CC to Colyear’s Property

1. Standard of Review

We analyze deeds under the same rules applicable to 

contracts. (Canyon Vineyard Estates I, LLC v. DeJoria (2022) 78 

Cal.App.5th 995, 1003.) “Contract interpretation is a question of 

law.” (Ibid.) “‘The fundamental goal of contract interpretation is 

to give effect to the mutual intention of the parties.’” (Ibid; see

Civ. Code, § 1636; Bank of the West v. Superior Court (1992) 2 

Cal.4th 1254, 1264.) When a contract is reduced to writing, the 

parties’ intention is determined from the writing alone, if possible. 

(Civ. Code, § 1639.) “The words of a contract are to be understood 

in their ordinary and popular sense.” (Civ. Code, § 1644; see 

Lloyd’s Underwriters v. Craig & Rush, Inc. (1994) 26 Cal.App.4th 

1194, 1197–1198 [“We interpret the intent and scope of the 

agreement by focusing on the usual and ordinary meaning of the 

language used and the circumstances under which the agreement 

was made”].) The whole of the contract is “‘to be taken together, so 

as to give effect to every part, if reasonably practicable,’” and to 

avoid a construction “that would render other provisions 

surplusage.” (Boghos v. Certain Underwriters of Lloyd’s of London 

6 In so ruling, the trial court found the petition for writ of 

mandate superfluous. The court reasoned that, although there was no 

basis for the Association to enforce the Tree CC, issuance of writ relief

was unnecessary because the claims for declaratory and injunctive 

relief accomplished this purpose. 
18

(2005) 36 Cal.4th 495, 503 (Boghos); see R.W.L. Enterprises v. 

Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1026 (R.W.L. 

Enterprises) [an interpretation giving “‘effect to all provisions of 

the contract is preferred to one which renders part of the writing 

superfluous, useless or inexplicable’”].) 

Extrinsic evidence is admissible to prove a meaning to which 

the contract is reasonably susceptible. (Powers v. Dickson, Carlson 

& Campillo (1997) 54 Cal.App.4th 1102, 1111.) If the trial court 

decides, after receiving the extrinsic evidence, the language of the 

contract is reasonably susceptible to the interpretation urged, the 

evidence is admitted to aid the interpretation. (Ibid.) Thus, “[t]he 

test of admissibility of extrinsic evidence to explain the meaning of 

a written instrument is not whether it appears to the court to be 

plain and unambiguous on its face, but whether the offered 

evidence is relevant to prove a meaning to which the language of 

the instrument is reasonably susceptible.” (Pacific Gas & E. Co. v. 

G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37.)

The threshold issue of whether to admit the extrinsic 

evidence—that is, whether the contract is reasonably susceptible 

to the interpretation urged—is a question of law subject to de novo 

review. (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554–555.) 

Here, because the material facts are undisputed, the legal 

significance of those facts presents a question of law which we 

review de novo. (Hill v. San Jose Family Housing Partners, LLC

(2011) 198 Cal.App.4th 764, 774.)
19

2. Declaration 150 Does Not Apply to Colyear’s Property 

a. Under Citizens, Declaration 150 Does Not 

Burden Colyear’s Property Because His Property 

is Not Described in It

“A covenant running with the land is created by language in 

a deed or other document showing an agreement to do or refrain 

from doing something with respect to use of the land.” (Committee 

to Save The Beverly Highlands Homes Assn. v. Beverly Highlands 

Homes Assn. (2001) 92 Cal.App.4th 1247, 1269.) The only 

covenants that run with the land are those specified by statute 

“and those which are incidental thereto.” (Civ. Code, § 1461.) The 

primary characteristic of a covenant running with the land is that 

its benefits and burdens pass with the transfer of the estate. (Self 

v. Sharafi (2013) 220 Cal.App.4th 483, 488.)

Citizens described the requirements for the formation of 

covenants and held that where CC&Rs are recorded before the 

sale of any property in a subdivision, describing the property they 

govern, subsequent purchasers who have constructive notice of the 

recorded CC&Rs are deemed to have agreed to be bound by such 

restrictions, even where such restrictions are not mentioned in any 

deed or other document. (Citizens, supra, 12 Cal.4th at p. 349, 

italics added.) Citizens found it was not merely the intent of the 

original grantor that established the covenant; there must be 

sufficient intent on the part of the purchaser to enter the 

covenants. “Although notice is relevant to our resolution of the 

issue, it is not the issue itself.” (Id. at p. 356.) Rather, there must 

be sufficient evidence of the grantee’s intent to accept the 

covenant. (Id. at pp. 356, 365–366.) 

As Citizens made clear, the covenant comes into existence 

upon sale or transfer of the property. “In essence, if the 
20

restrictions are recorded before the sale, the later purchaser is 

deemed to agree to them. The purchase of property [with]

know[ledge] of the restrictions evinces the buyer’s intent to accept 

their burdens and benefits. Thus, the mutual servitudes are 

created at the time of the conveyance even if there is no additional 

reference to them in the deed.” (Citizens, supra, 12 Cal.4th at 

p. 363.) Citizens concluded, “[T]he rule is consistent with the 

rationale that a covenant requires an agreement between buyer 

and seller, and not a unilateral action by the developer.” (Id. at 

p. 367.) In other words, the parties’ intent is inferred from the 

recorded uniform plan: “It is express on the part of the seller, 

implied on the part of the purchaser. . . .” (Id. at p. 366.)

Citizens examined two cases for guidance: Werner v. 

Graham (1919) 181 Cal. 174 (Werner) and Riley v. Bear Creek 

Planning Committee (1976) 17 Cal.3d 500 (Riley). In both cases,

covenants were recorded by developers seeking to impose a 

general plan, but the developers failed in their efforts for different 

reasons. In Werner, the developer subdivided a parcel and

recorded a map but did not record any other documents indicating 

any restrictions. (Werner, supra, at p. 177.) The developer in 

Riley sold the property in dispute by deed that contained no 

restrictions, but nine months after the conveyance, the developer 

recorded a document purporting to impose uniform restrictions on 

a number of lots, including the one in dispute. (Riley, supra, at 

p. 504.) In both Werner and Riley, the Supreme Court held the 

properties were not bound by the restrictions. In Werner, there 

was no recorded document imposing uniform restrictions on the 

entire subdivision, only individual deeds imposing restrictions on 

specific parcels. In Riley, the restrictions were recorded after the 

conveyance at issue. 
21

Here, applying the rule recognized in Citizens and its 

rationale, we conclude the Tree CC of Declaration 150 does not 

apply to Colyear’s property. First, it is undisputed that 

Declaration 150 does not describe Colyear’s property, as required 

by Citizens. This requirement defines the scope of the buyer’s 

implied agreement to any covenant binding the described

property. As originally set forth, Declaration 150 covered the 

narrow strip down the middle of Rolling Hills. In later years, as 

PVC expanded the Rolling Hills development, additional 

declarations were made, including Declaration 150-M governing 

Colyear’s property. Neither Colyear’s deeds nor his title reports 

reference Declaration 150, but they reference Declaration 150-M. 

As a result, under Citizens, Colyear did not impliedly agree to be 

bound by a covenant set forth in Declaration 150.

b. The Association’s Arguments

Acknowledging that Declaration 150 does not expressly 

apply to Colyear’s property, the Association advances several 

theories to extend the Tree CC to Colyear’s property: 

(1) Declaration 150-M’s references to Declaration 150 and the 

General Plan incorporate the basic restrictions of Declaration 

150; (2) these references provide constructive or inquiry notice 

that the Tree CC in Declaration 150 applies to lands annexed 

under Declaration 150-M; (3) the extrinsic evidence at trial 

established that PVC intended to incorporate Declaration 150’s 

terms into Declaration 150-M; (4) under the Nunn and Russell

cases, the Tree CC should apply; (5) Resolution 220 makes the 

Tree CC applicable; and (6) because Colyear benefits from using

Association property, he bears the corresponding burden of 
22

complying the Tree CC in Declaration 150. These arguments are 

unpersuasive.

(1) Declaration 150-M Does Not Incorporate 

Declaration 150’s Terms

The Association argues that references to Declaration 150 

in Declaration 150-M are sufficient to incorporate the Tree CC

into Declaration 150-M. We disagree.

We turn to contract principles for guidance. A contract 

may incorporate the terms of another contract. (Shaw v. Regents 

of the University of California (1997) 58 Cal.App.4th 44, 54.) 

However, the reference to the other contract or its terms must be 

clear and unequivocal. “‘“[T]he reference must be called to the 

attention of the other party and he must consent thereto, and the 

terms of the incorporated document must be known or easily 

available to the contracting parties.” [Citation.]’” (Ibid.) 

Further, the terms of the contract must be sufficiently certain in 

order to provide a basis for determining the existence of a breach 

and for giving an appropriate remedy. (Weddington Productions, 

Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) As a corollary, we 

will not write the parties’ contract for them. (Industrial 

Indemnity v. Superior Court (1990) 224 Cal.App.3d 828, 832.) 

In this case, Declaration 150-M does not sufficiently 

incorporate the Tree CC found in Declaration 150. First, unlike 

other declarations such as Declaration 150-A, Declaration 150-M

does not expressly incorporate the restrictions found in 

Declaration 150; to the contrary, the General Basic Descriptions 

in Declaration 150-M duplicate some of Declaration 150’s General

Basic Restrictions and omit others. Second, while Declaration 

150-M acknowledges that Declaration 150 exists, nowhere is 

there clear and unequivocal incorporation of Declaration 150 or 
23

its Tree CC. For example, the first reference to Declaration 150

is to its separate location by Map and Book number. Declaration 

150-M also refers to PVC’s “General Plan” and the Association’s

power to interpret and enforce covenants imposed on tracts 

covered by Declaration 150, but this simply recites the 

Association’s powers as to tracts covered by Declaration 150. It 

does not state that Declaration 150’s covenants apply to tracts 

covered by Declaration 150-M. Finally, Declaration 150-M 

provides that under Article IV, section 5 of Declaration 150, PVC 

can annex more tracts to be governed by Declarations that are to 

be later recorded. That is what occurred here: Colyear’s property 

was annexed, and Declaration 150-M was recorded to govern it. 

These references are not sufficiently clear, unequivocal, or certain 

to incorporate Declaration 150’s Tree CC into Declaration 150-M. 

(2) Declaration 150-M’s References to 

Declaration 150 Did Not Otherwise Make 

the Tree CC Applicable to Colyear’s 

Property

The terms of Declaration 150, including the Tree CC, were 

not recorded against Colyear’s property. Nevertheless, the 

Association asserts that the references to Declaration 150 in 

Declaration 150-M were sufficient to put Colyear on constructive 

or inquiry notice that the Tree CC applied to his property. 

According to the Association, Colyear should have inquired as to 

what Declaration 150 said, analyzed the competing declarations, 

and reached the conclusion that the Tree CC applied to his 

property. The Association asserts, under Citizens, this is 

sufficient to enforce the Tree CC against his property, even 

though the covenant is not in the chain of title. We disagree. 
24

As a preliminary matter, the references to Declaration 150 

in 150-M did not put Colyear sufficiently on constructive or 

inquiry notice of the applicability of the Tree CC. Constructive 

notice of a lien, covenant, or other interest in property arises from 

the proper recording of that interest. (Civ. Code, § 1213; Vasquez 

v. LBS Financial Credit Union (2020) 52 Cal.App.5th 97, 108.) 

Civil Code section 1213 provides that “every conveyance of real 

property . . . recorded as prescribed by law [provides] constructive 

notice of its contents [ ] to subsequent purchasers.” (See Civ. Code, 

§ 1215.) A purchaser has inquiry notice where the purchaser “‘has 

knowledge of circumstances which, upon reasonable inquiry, 

would lead to that particular fact.’” (In re Marriage of Cloney

(2001) 91 Cal.App.4th 429, 437; see Civ. Code, § 19.) As we have 

discussed, Declaration 150-M did not incorporate Declaration 150 

by reference and Declaration 150 was not otherwise recorded 

against Colyear’s property. Even if Colyear had reviewed 

Declaration 150, given the property description therein, he could 

have concluded it applied to a different section of Rolling Hills. 

This conclusion would have been confirmed by the Association in 

2002 when it stated the Tree CC was not enforceable against his 

property.

Moreover, Citizens does not stand for the proposition that a

purported covenant outside the chain of title can be enforced

whenever there is a development with a common grantor. 

Although PVC is the common grantor of the Rolling Hills parcels, 

it conveyed different parcels under different declarations. As 

Citizens makes clear, a covenant is created by implied agreement, 

which occurs with the recordation of the original declaration on 

property and its acceptance through conveyance to a subsequent 

purchaser. “‘The burden should be upon the developer to insert 
25

the covenant into the record in a way that it can be easily found’

and ‘[a]ll buyers could easily know exactly what they were 

purchasing.’” (Citizens, supra, 12 Cal.4th at p. 365.) The 

recordation should be such that a title search reflects the 

operative declaration. (Ibid.) Then, when a conveyance is made

subject to that declaration, the buyer can be deemed to have 

consented to it. Here, it is undisputed that the original 

declaration recorded on Colyear’s property, 150-M, did not 

contain the Tree CC. Thus, under Citizens, Colyear cannot be 

deemed to have accepted the Tree CC. 

(3) Extrinsic Evidence of PVC’s Intent

The Association argues the trial court erred in ignoring its 

extrinsic evidence of PVC’s intent to have a uniform General Plan 

that would include tree-trimming covenants for every property in 

the development. We disagree that such evidence must be 

considered in defining the scope of the covenant. Citizens 

demonstrates the intent that matters is what is expressed in 

writing in the recorded predecessor documents describing the 

property to be bound. (Citizens, supra, 12 Cal.4th at p. 366.) PVC 

did not bring its intended General Plan to fruition by recording the 

necessary documents in conformity with Citizens on Colyear’s 

property. As explained in Werner and Citizens, the sole intent of 

the common grantor, the original owner, is insufficient. There 

must be joint intent between the grantor and the grantees. 

Further, Riley rejected parol evidence to show that the parties in 

fact intended the property to be subject to restrictions like those 

later recorded, finding that the covenants must be in writing to be 

effective. (Riley, supra, 17 Cal.3d at p. 509.) A contrary rule 

“would make important questions of the title to real estate largely 
26

dependent upon the uncertain recollection and testimony of 

interested witnesses.” (Id. at p. 510.)

(4) Nunn and Russell

To the extent the Association attempts to rely on Nunn and 

Russell to contend the Tree CC applies to Colyear’s property, both

cases are distinguishable. Nunn addressed two properties, one 

with the Tree CC and the other without it, and did not decide the 

issue whether the Tree CC applied to the entire community

regardless of the language in the individual declarations. Russell 

did not decide the applicability of the Tree CC. As our analysis 

based on Citizens makes clear, Russell’s commentary on the scope 

of the General Plan and Declaration 150 is only dicta. (SonicCalabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158 [an 

appellate decision is not authority for everything said in the 

court’s opinion but only for the points involved and actually 

decided].)

(5) Resolution 220

The Association argues Resolution 220 provides an 

independent basis to enforce the Tree CC. Resolution 220 

permitted any property owner to file a view application, regardless 

of the owner’s governing declaration. Resolution 220 only provides 

a mechanism for filing a view application to resolve tree-trimming 

disputes. It is not a covenant.
27

(6) Colyear’s Use of Association Common 

Areas is Not Inconsistent with Our 

Conclusion

Finally, the Association asserts that because Colyear enjoys 

the benefits of Rolling Hills’ roads, gates, and other facilities, he 

should be subject to all intended restrictions, including the Tree 

CC. The Association generally argues that it would be unfair to 

allow him to enjoy the benefits of common areas without 

subjecting him to the burden of the Tree CC. To the extent this 

argument posits that only properties subject to the original 

Declaration 150 may use the common areas, it is mistaken. The 

Association’s Articles of Incorporation establish that the common 

areas are governed by the Association “for the benefit of residents 

of any tract” and as may be set forth in any subsequent 

declaration for such tract. As we have discussed, there is no 

declaration applicable to Colyear’s property that includes the Tree 

CC. 

c. Declaration 150-M’s Tree-Trimming Provisions

Do Not Provide an Independent Basis to Trim 

Colyear’s Trees

The Association asserts certain provisions of Declaration 

150-M (Art. II, § 2, subds. (u), (j), and (v))—independent of 

Declaration 150’s General Plan—provide the authority for it to 

enter Colyear’s property and trim trees for any purpose, including 

view protection. Colyear asserts the Association did not raise the 

issue at trial, and in any event, the Association’s tree-trimming 

power is limited to streets, parks, playgrounds, school grounds, 

and adjacent land. 
28

Declaration 150-M, Article II, section 2, subdivision (u) 

permits the Association to trim trees under certain circumstances: 

The Association has the power “[t]o care for, trim, protect, plant 

and replant trees, shrubs, or other planting on streets, parks, 

playgrounds, school grounds, or upon any property over which it 

may have and/or assume control or jurisdiction and/or on any 

property adjoining the same.” Article II, section 2, subdivision (j) 

grants the Association the authority to “provide for light [and] 

air . . . for the occupants of existing and/or hereafter erected 

buildings by establishing such regulations as are usually included 

in city housing codes or zoning regulations.” Finally, Article II, 

section 2, subdivision (v) authorizes the Association to “care for, 

trim, protect and plant or replant any vacant or private property it 

may assume charge of and to make a reasonable charge therefor.” 

We need not determine whether the Association sufficiently 

raised the issue at trial because these provisions do not give the 

Association power to trim trees on any and all private property 

within the Association’s boundaries. By its plain language, 

subdivision (u) governs plants in public places: streets, parks, 

playgrounds, and school grounds. To the extent subdivision (u)

also refers to “any property over which [the Association] may have 

and/or assume control and jurisdiction and/or on any property 

adjoining the same,” this language must be read in context. It

refers to the Association’s ability to attend to plantings found on 

the types of property the Association may control that are similar 

to the public property specifically identified. In some instances, 

the Association’s plantings could naturally encroach on adjoining 

properties, in which case, subdivision (u) would arguably allow the 

Association to cut them back. But subdivision (u) cannot be 

construed beyond the terms it encompasses. (See Eisen v. 
29

Tavangarian (2019) 36 Cal.App.5th 626, 644 [ejusdem generis 

limits general word following specific word to those of like kind].) 

To interpret subdivision (u) as the Association proposes

would render the Tree CC mere surplusage, as the Association 

could use subdivision (u) to trim trees found anywhere on any 

private property. PVC would not have relied upon vague language

at the end of a provision governing public spaces to establish a 

significant right to enter an individual homeowner’s property and 

cut their trees. (See Boghos, supra, 36 Cal.4th at p. 503; R.W.L.

Enterprises, supra, 17 Cal.App.5th at p. 1026.)

The Association’s arguments regarding subdivisions (j) and 

(v) are also unavailing. The language in these provisions is also 

too general to encompass the Association’s specific right to enter 

private property and trim trees. Subdivision (j) deals with the 

Association’s ability to make light and air regulations “as are 

usually included in city housing codes or zoning regulations” and 

contemplates view preservation regulations regarding future 

construction. This language cannot reasonably be construed to 

give the Association the authority to enforce the Tree CC on 

property not otherwise encumbered by it. (Epic Communications, 

Inc. v. Richwave Technology, Inc. (2015) 237 Cal.App.4th 1342, 

1348–1349 [language must be reasonably susceptible to 

interpretation “urged by the party”].) For the same reason, 

subdivision (v) cannot be extended in the manner the Association 

argues. Subdivision (v) concerns the care of vacant or private 

property of which the Association takes charge, not private 

property generally, including property actively managed by its 

owner. Finally, as with subdivision (u), if subdivisions (j) and (v) 

are interpreted as the Association proposes, they render the Tree 
30

CC mere surplusage. (See Boghos, supra, 36 Cal.4th at p. 503; 

R.W.L. Enterprises, supra, 17 Cal.App.5th at p. 1026.)

B. Scope of Injunctive Relief

The Association contends the injunctive relief granted by the 

trial court is overbroad, constitutes a prior restraint on speech, 

and should not include the individual director defendants. 

Colyear counters that the Association, as well as the individual 

board members, have asserted the Tree CC applies throughout the 

area governed by the Association, and thus, prior restraint is 

appropriate. 

The judgment contains two injunctions. The judgment on 

the declaratory relief claim enjoins “all Defendants” and anyone 

“acting in concert with them . . . from enforcing, or attempting to 

enforce, the [Tree CC] against [Colyear’s property].” The

judgment on the injunctive relief claim enjoins all defendants from 

“publishing or disseminating in any statements or documents, 

including internet website content, indicating that the [Tree CC]

applies to or may be enforced against the [s]ubject [p]roperty.” 

1. Governing Law

A permanent injunction is a determination on the merits 

that a plaintiff has prevailed on a cause of action and that 

equitable relief is appropriate. (Art Movers, Inc. v. Ni West, Inc.

(1992) 3 Cal.App.4th 640, 646.) The grant or denial of a 

permanent injunction rests within the trial court’s sound 

discretion and will not be disturbed on appeal absent a showing of 

a clear abuse of discretion. (Mendez v. Rancho Valencia Resort 

Partners, LLC (2016) 3 Cal.App.5th 248, 260.) A permanent 

 See footnote, ante, page 1.
31

injunction, notwithstanding its discretionary component, must be 

sufficiently supported by the evidence of record. (DVD Copy 

Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 

697, 721.) If the evidence is insufficient to justify issuance of a 

permanent injunction, the trial court had no discretion to issue the 

injunction. (Ibid.)

“‘[P]rior restraints on speech and publication are the most 

serious and the least tolerable infringement on First Amendment 

rights.’ [Citation.]” (DVD Copy Control Assn., Inc. v. Bunner 

(2003) 31 Cal.4th 864, 886.) A prior restraint describes judicial 

orders forbidding certain communications when issued in advance 

of the time that such communications are to occur, and permanent 

injunctions “are classic examples of prior restraints.” (Ibid.) 

However, “[a]lthough stated in broad terms, the right to free 

speech is not absolute.” (Aguilar v. Avis Rent A Car System, Inc.

(1999) 21 Cal.4th 121, 133–134.) Indeed, “‘there are categories of 

communication and certain special utterances to which the 

majestic protection of the First Amendment does not extend 

because they “are no essential part of any exposition of ideas, and

are of such slight social value as a step to truth that any benefit 

that may be derived from them is clearly outweighed by the social 

interest in order and morality.”’” (Balboa Island Village Inn, Inc. 

v. Lemen (2007) 40 Cal.4th 1141, 1147 (Lemen).)

Injunctive relief may be applied to repetition of expression 

that has judicially been determined to be unlawful. (Lemen, 

supra, 40 Cal.4th at p. 1153.) However, an injunction’s scope is 

overbroad where the conduct enjoined is not likely to recur in the 

future. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332–

333.) 
32

2. The Order Enjoining Future Speech

Here, substantial evidence does not support a finding the 

Association (or its board members) have expressed outside of 

litigation that the Tree CC applies to Colyear’s property. As 

reflected in its response to Colyear’s July 2002 letter, the 

Association has at times asserted the Tree CC did not apply to his 

property. While this confusion led Colyear to institute this action 

preemptively after joining third-party litigation between 

neighboring homeowners, it does not show the Association (or its 

board members) repeatedly asserted Declaration 150 and the Tree 

CC applied to Colyear’s property. Moreover, the trial court’s 

ruling the Tree CC does not apply to Colyear’s property makes it 

unlikely the Association will publicly state otherwise in the future. 

As such, the injunction is not supported by sufficient evidence and 

therefore constitutes an abuse of discretion.

3. The Order Enjoining Future Attempts of Enforcement

The order enjoining “all Defendants” and those acting in 

concert with them from enforcing, or attempting to enforce, the 

Tree CC against Colyear’s property does not enjoin speech. Thus, 

it is subject to a different analysis. Appellants do not contest entry 

of the injunction prohibiting the enforcement of the Tree CC 

against Colyear’s property as a general proposition but argue

instead that the declaratory relief injunction is overbroad because 

only the Association itself need be enjoined. 

Appellants cite no applicable authority to show it is an 

abuse of discretion to enjoin all defendants and those working in 

concert with them. It is well settled that an entity, as well as 

those through which it acts, may be subject to an injunction. 

(Berger v. Superior Court (1917) 175 Cal. 719, 721 [injunction 
33

applies to the classes of persons through whom the enjoined 

person may act, such as agents, servants, employees, aiders, 

abettors, etc., though not parties to the action]; accord, Signal Oil 

& Gas Co. v. Ashland Oil & Refining Co. (1958) 49 Cal.2d 764, 

779 [injunction against the corporation is injunction against the 

directors, acting in their capacity as directors].)

7 As there is no 

showing the trial court abused its discretion by enjoining the 

Association, the individual directors, and those acting in concert 

with them, the declaratory relief injunction is affirmed. 

C. Breach of Fiduciary Duty Claim 

The Association contends the breach of fiduciary duty claim 

must be reversed because Colyear suffered no damages, as 

attorney fees do not constitute proper damages for breach of

fiduciary duty. The Association also contends the directors acted 

in good faith in enforcing the CC&Rs, and because they cannot be 

individually liable, the Association itself cannot be liable. Colyear 

responds that the trial court’s findings necessarily establish harm 

because the court enjoined the Association from further breaches

and good faith does not excuse the Association’s breach. We 

conclude the claim fails due to a lack of damages.

1. Relevant Background

At trial, the Association asserted it acted in good faith

pursuant to the business judgment rule (Corp. Code, § 7231) and 

7 Although the Federal Rules of Civil Procedure are not applicable 

in this case, we note the court used language similar to that found in 

rule 65. Rule 65 states that an injunction can include the parties, “the 

parties’ officers, agents, servants, employees, and attorneys,” and “other 

persons who are in active concert or participation” with the parties.

(Fed. Rules Civ. Proc., rule 65.)
34

on reliance of counsel. The trial court agreed as to the actions of 

the individual board members, citing Biren v. Equality Emergency 

Medical Group, Inc. (2002) 102 Cal.App.4th 125, 137 (Biren) 

[business judgment rule protects even misinformed, misguided 

and mistaken directors who were well-meaning]. 

However, the court found the Association could be found 

liable apart from its individual board members on the rationale 

that even where the board members are protected by the good 

faith exception, a homeowner should not be without a remedy 

against the board. (See Ritter & Ritter, Inc. Pension & Profit Plan 

v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 

125 (Ritter).) The court found the Association liable because it 

adopted a community-wide view policy (Resolution 220) without a 

valid basis in the applicable declarations. 

With respect to damages, the trial court found that while

Colyear’s property would suffer a loss in value if the trees were 

cut, he had neither attempted to sell his property nor was he 

dissuaded from doing so because of the Tree CC. Thus, there was

no indication of past damages for diminution in value. Due to the 

injunctive and declaratory relief, there was no evidence supporting 

present or future damages. Although the court believed attorney 

fees could be recovered as damages at the time it entered its

corrected statement of decision, there was no evidence presented 

at trial of such fees. Nonetheless, the court upheld the 

Association’s liability for breach of fiduciary duty on the apparent 

basis Colyear might be awarded attorney fees. 

On September 21, 2020, Colyear filed a separate, noticed 

motion for attorney fees pursuant to Civil Code section 5975. The 

trial court granted the fees in an order entered February 25, 2021. 
35

2. Colyear Has Failed to Establish Damages

The three elements of the cause of action for breach of 

fiduciary duty are: existence of a fiduciary relationship, breach of 

fiduciary duty, and damages. (Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811, 820.) The directors of the Association are

fiduciaries who must act for the benefit of the corporation and its 

members. (Frances T. v. Village Green Owners Assn. (1986) 42 

Cal.3d 490, 513 [directors of nonprofit corporations are fiduciaries 

who are required to exercise their powers in accordance with the 

duties imposed by the Corporations Code].) 

A homeowner’s association and its board members may also 

be protected from liability under two theories: (1) a rule of judicial 

deference to their decision-making and (2) the business judgment 

rule. We need not consider these theories or whether the 

Association can be liable without underlying liability of its 

individual directors, as Colyear has failed to establish damages. 

The trial court found no diminution in value of Colyear’s

property. Absent evidence Colyear attempted to sell his property

or was dissuaded from doing so because of the Tree CC, we discern 

no evidence of past damages for diminution in value. As a result 

of the declaratory relief action, there was also no evidence 

supporting present or future damages through enforcement of the 

Tree CC. The trial court posited, “[T]he only other form of 

recoverable damages on this claim would be a recovery of 

attorney’s fees” but found “no sufficient evidence of expenditures 

[for legal fees] or their reasonableness was presented at trial.”

The Association points out attorney fees are not awardable 

as damages in tort actions, including claims for breach of fiduciary 

duty. The Association challenges the trial court’s finding that 

such fees can be recovered as damages for Colyear’s breach of 
36

fiduciary duty claim. (Gray v. Don Miller & Associates, Inc. (1984) 

35 Cal.3d 498, 507.) We agree with the Association that attorney 

fees do not constitute damages for purposes of Colyear’s breach of 

fiduciary duty claim. (See Garcia v. Santana (2009) 174 

Cal.App.4th 464, 473.) The availability of such fees under Civil 

Code section 5975 (the Davis-Stirling Common Interest 

Development Act) for an action between a homeowner association 

and an owner does not convert attorney fees into damages for 

purposes of establishing tort liability. Rather, such fees are 

available to ensure access to the courts. (See Garcia v. Santana, 

supra, at p. 473.) We note that the trial court did not find 

sufficient evidence of the total attorney fees claimed at trial in any 

event. 

Colyear contends entry of equitable relief establishes the 

requisite harm in his breach of fiduciary duty claim, which 

“logically” flows from the Association’s breach given the years he 

spent opposing any application of the Tree CC to his property. We 

disagree. 

Colyear sought declaratory relief, which is available to any

party “who desires a declaration of his or her rights or duties with 

respect to another . . . .” (Code Civ. Proc., § 1060.) “‘Declaratory 

relief operates prospectively, serving to set controversies at rest 

before obligations are repudiated, rights are invaded or wrongs are 

committed. Thus[,] the remedy is to be used to advance 

preventative justice, to declare rather than execute rights. 

[Citations.]’ In essence, declaratory relief operates to declare 

future rights, not to address past wrongs.” (Monterey Coastkeeper 

v. California Regional Water Quality Control Bd., etc. (2022) 76 

Cal.App.5th 1, 13.) As Colyear’s declaratory relief action did not 

“‘address past wrongs,’” it did not establish the requisite proof of 
37

actual damages or harm for purposes of his breach of fiduciary 

duty claim. 

In addition, the issuance of the injunction to prevent future 

damage from occurring did not constitute “damages” for purposes 

of a breach of fiduciary duty claim. An injunction is designed to 

maintain the status quo. (Daly v. San Bernardino County Bd. of 

Supervisors (2021) 11 Cal.5th 1030, 1040–1041.) Here, none of 

Colyear’s trees had been trimmed by or because of the Association. 

While any injunction would prevent future harm, it did not prove 

there were damages to support the breach of fiduciary duty claim. 

D. We Reverse the Attorney Fees Award Against the 

Individual Directors 

The Association asserts the attorney fees award against its 

individual directors should be reversed because Civil Code section 

5975’s fee-shifting provision does not apply to individual directors

shielded by the business judgment rule. Colyear urges us to 

affirm the award because the statute authorizes awards against 

individual defendants generally, if not individual directors. He 

argues that because he is seeking to hold the individual 

defendants liable as property owners and not directors, the 

business judgment rule does not protect them. We agree with the 

Association’s argument.

8

The trial court awarded the reduced amount of 

$1,328,391.04 in attorney fees against all defendants pursuant to 

Civil Code section 5975. Section 5975 provides in relevant part 

that covenants and restrictions “may be enforced by any owner of 

8 In light of our conclusion, we do not address the Association’s 

alternative argument that Colyear was not the prevailing party 

against its individual directors. 
38

a separate interest or by the association, or by both” (Civ. Code, 

§ 5975, subd. (a)), and in an action “to enforce the governing 

documents [of a common interest development], the prevailing 

party shall be awarded reasonable attorney[ ] fees and costs” (Civ. 

Code, § 5975, subd. (c)). Civil Code section 5980 provides that an 

association entity, not its individual directors, has standing to 

prosecute such enforcement actions on its behalf. (Civ. Code, 

§ 5980.) 

We construe sections 5975 and 5980 together as authorizing 

an award of attorney fees against the Association and not its 

individual directors. (See Poole v. Orange County Fire Authority 

(2015) 61 Cal.4th 1378, 1385 [statutory provisions must be read 

together].) Subdivision (a) of section 5975 applies only to an

“association” or to “owners,” and does not specifically apply to

individual board members. Reading sections 5975 and 5980 

together, they indicate that if an owner, such as Colyear, brings 

an enforcement action against an association, the association 

may be liable for attorney fees; they do not indicate that 

individual directors of the Association should also be liable for 

them.

9 

Colyear argues he is not seeking to hold the individuals 

liable for attorney fees as directors, as he recognizes they might 

9 Cases cited by Colyear do not indicate otherwise. Each illustrates

that when an association brings an enforcement action against a 

property owner for improper improvements or leasing, the prevailing 

party may seek attorney fees. (See, e.g., Rancho Mirage Country Club 

Homeowners Ass’n v. Hazelbaker (2016) 2 Cal.App.5th 252, 260;

Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 

761, 765.) They do not hold individual directors of an association liable 

for attorney fees.
39

be shielded from liability under the business judgment rule.

10

Instead, Colyear contends he is seeking to hold each director 

defendant liable as a property owner. In this regard, Colyear

asserts the individual owners should be held liable for attorney 

fees because they have “expressed the view” the Tree CC applies 

to his property. This is not enough. Section 5975 contemplates 

awarding attorney fees to enforce a covenant by a landowner or an 

association. Colyear has made no allegation the individual board 

members acted in their capacity as landowners seeking to enforce 

the Tree CC, and the trial court made no such finding. As such, 

they are not liable for attorney fees under section 5975. 

E. Colyear’s Cross-Appeal

In his cross-appeal, Colyear contends the trial court abused 

its discretion in denying his quiet title claim because he 

established each element of the claim as a matter of law. 

Moreover, Colyear contends the trial court could not decline to 

issue a quiet title judgment on the basis it was redundant in light 

of the declaratory relief judgment. The Association responds that 

the trial court properly exercised its discretion to fashion 

10 As Colyear acknowledges, section 7231 of the Corporations Code 

provides that individual directors are generally shielded from liability 

for performing their duties in good faith under the business judgment 

rule. The rule sets up a presumption that directors’ decisions are 

based on sound business judgment and can be rebutted only by a 

factual showing of fraud, bad faith, or gross overreaching. (Eldridge v. 

Tymshare, Inc. (1986) 186 Cal.App.3d 767, 776.) Implicit in this rule is 

that directors of non-profit boards would have little incentive to 

volunteer for service if they faced great risk of liability for doing so. 

(See Ritter, supra, 166 Cal.App.4th at p. 121.) Here, the trial court 

found that the individual defendants were shielded from liability for 

breach of fiduciary duty under the business judgment rule.
40

appropriate relief, no prejudice was shown by the failure to enter a 

quiet title judgment, and Colyear provides no record citation to 

show an adverse claim. We conclude an adverse claim to title was 

not sufficiently shown and find no abuse of discretion.

11

1. Relevant Background

The trial court found Colyear failed to meet his burden to 

prove an adverse claim against the property sufficient to warrant 

a judgment quieting title. The court observed, “[Colyear] presents 

a novel issue in that he seeks to quiet title . . . against adverse 

claims that do not arise from any document recorded in his chain

of title . . . .” The court indicated the Association’s failure to 

properly record such a claim was the very basis for finding the 

Tree CC inapplicable to Colyear’s property. As a result, the court 

found a quiet title judgment would “unnecessarily complicate the 

chain of title.” In light of the declaratory judgment and 

permanent injunction, the court also found a quiet title judgment 

would be “redundant and confusing.” The court declined to 

exercise its discretion to issue a quiet title judgment. 

2. Discussion

A quiet title action is generally equitable in nature and 

seeks to declare the rights of the parties in realty. (Civ. Proc., 

11 We deny appellants’ motion to strike portions of Colyear’s crossappellant’s reply brief and their accompanying request for sanctions. 

To the extent Colyear’s combined brief raises arguments or issues for 

the first time in his combined brief, we shall ignore those arguments as 

beyond the scope of his cross-appeal. (See Doe v. University of

Southern California (2016) 246 Cal.App.4th 221, 252, fn. 16; Hawran

v. Hixson (2012) 209 Cal.App.4th 256, 268.)
41

§ 760.010 et seq.; Strauss v. Summerhays (1984) 157 Cal.App.3d 

806, 812.) To establish a claim to quiet title, the plaintiff must 

establish an “adverse claim” to the property. (Civ. Proc., 

§ 760.020, subd. (a).) Such claim must also affect title to the 

property. (West v. JPMorgan Chase Bank, N.A. (2013) 214 

Cal.App.4th 780, 802–803.) The object of the action is to finally 

settle and determine all conflicting claims to the property in 

controversy, and to decree to each such interest or estate therein 

as each may be entitled. (Robin v. Crowell (2020) 55 Cal.App.5th 

727, 740.) Quiet title judgments operate in rem and are therefore 

binding not only against the parties to the quiet title proceeding, 

but also “‘against all the world.’” (Nickell v. Matlock (2012) 206 

Cal.App.4th 934, 944.)

We review the trial court’s decision for abuse of discretion. 

The court’s discretion to issue a quiet title judgment must be 

exercised within the bounds of governing statutes and must be 

guided by applicable legal principles. (Farmers Ins. Exchange v. 

Superior Court (2013) 218 Cal.App.4th 96, 106.) The question of 

whether a trial court applied the correct legal standard to an 

issue in exercising its discretion is a question of law. (Gonzalez v. 

Munoz (2007) 156 Cal.App.4th 413, 420–421.) We review any

disputed facts for substantial evidence. (Ridec LLC v. Hinkle 

(2023) 92 Cal.App.5th 1182, 1195.) 

Colyear asserts a judgment quieting title is required as a 

matter of law, and the trial court abused its discretion in declining 

to quiet title because the Association asserted an “‘interest in 

property’ adverse to Mr. Colyear’s title.” We disagree. Colyear 

has cited no case establishing entitlement to quiet title where the 

purported adverse claim is a covenant that is both inapplicable to 

the plaintiff’s property and does not put plaintiff’s title at stake. 
42

(See West v. JPMorgan Chase Bank, supra, 214 Cal.App.4th at 

pp. 802–803 [quiet title failed where defendant had no “adverse 

claims to title”].) Neither Colyear’s deeds nor his title reports 

reference Declaration 150. Rather, they reference Declaration 

150-M. In other words, Colyear does not demonstrate how arguing 

that a covenant applies to a property affects title where review of 

the chain of title itself proves the covenant does not apply. As this 

was the basis on which the trial court declined to exercise its 

equitable discretion to issue a quiet title judgment, Colyear has 

not demonstrated error.

Nevertheless, Colyear asserts that where a plaintiff shows 

any adverse claim, the plaintiff is entitled to have the validity of 

that interest declared by the court through quiet title. The cases 

upon which he relies are inapposite, as they involved claims that, 

unlike the inapplicable Tree CC, affected the plaintiff’s title. In 

Peterson v. Gibbs (1905) 147 Cal. 1, the plaintiff claimed to be the 

fee simple owner of property. (Id. at pp. 2–3.) The defendants

“denied that [the] plaintiff was the owner in fee or in possession of 

any part of said land,” based upon a duly recorded instrument that 

the court found valid. In Barker v. Barker (1956) 139 Cal.App.2d 

206, the parties disputed whether property was separate or 

community property and asked the court to determine who had 

title to it in their dissolution proceeding. (Id. at pp. 210–211.)12 

Here, there is no dispute Colyear has title to his property and no 

12 Colyear also relies on Water for Citizens of Weed California v. 

Churchwell White (2023) 88 Cal.App.5th 270, in support of his position. 

In that case, the court addressed a quiet title claim regarding water 

rights in the context of a malicious prosecution action and concluded 

the plaintiff had probable cause for bringing such a claim. (Id. at 

p. 284.) This case does not establish that a non-existent covenant 

created a cloud on title sufficient to constitute an “adverse claim.”
43

document is recorded in the chain of title applying the Tree CC to 

Colyear’s property. As Colyear has not shown how the trial court 

abused its discretion by failing to act within the bounds of the law, 

we affirm its decision on the quiet title cause of action.
44

DISPOSITION

The judgment of the superior court is affirmed with respect 

to declaratory relief and quiet title claims. The judgment is 

reversed with respect to the injunctive relief and breach of 

fiduciary duty claims. The attorney fees award is vacated, and the 

court is directed to enter a new order awarding attorney fees to 

Colyear against the Association. The parties are to bear their own 

costs on appeal. 

MORI, J.

We concur:

COLLINS, Acting P.J.

ZUKIN, J.