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. B3 08382

(Los Angeles County Super. Ct. No. BS150539 )

APPEAL from a j udgment 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

p arts 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 injuncti on , and
dam a ges 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, w e 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 In the unpublished portion of the opinion, we affirm the judgment as to Colyear’s claim of quiet title and reverse with respect to the claim s for injunctive relief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 and3

recorded a d eclaration 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 propert ies 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 t he 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 , describe s the property, and state s 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

s aid 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 authorize d 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, s ection 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 suc h 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 sai d owners membership in the Association as therein agreed to and provided.” Article II, section 2 of Declaration 150 provide d that the
Association ’s powers extend ed 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 provide d 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, is6

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 p age 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 t he “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 d eclarations 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, reservati ons [

, ] 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 Coly e a r ’s property, was recorded on May 29, 1944 , and does not contain the Tree CC

. In 1967 and 1970, Colye a r 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 in consistenc ies between
Declaration 150 and the annexation declarations. Swaffield observed that there were questions concerning the scope and applicability of the various declarations , and ther e was a “wide divergence of these restrictions in many instances.” In conjunction with this report, Swaffield produced a n 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 i n 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 s ection 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 contained8

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 d eclarations, those recorded from 1949 through 1969,
includ ed 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.2 d

. 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 notice 2 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

. A t 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

. ” W hen 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, Si d ney 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 ref

erence to restrictions of record.” ( Id . at p p . 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.)11

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 G eneral P lan 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 purchasers12

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 s u pport for view protection, t he Association attempted to create conformity among the divergent declarations. The Association adopted several resolutions as follows : Resolution 166. Th is 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 accept ing 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 asked13

whether the Association asserted the Tree CC was enforceable against his property, and t he 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

. I n 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,

t his resolution permitted any owner to file a n 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 applicatio n, 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 a pplication 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 and14

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 Assoc iation and the d irector defendants. 4 Colyear sought to enjoin the Association from relying on
Resolution 2 2 0 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, Ma rcia 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

g eneral restrictions

, including the view covenant
, applied to his property . The Association also argued it had treated Declaration
150 as the G eneral P lan from the beginning and its interpretation
of the G eneral P lan was conclusive.
The trial court issued its Corrected Statement of Decision and entered judgment on September 4, 2020.
In its statement of decision, t he 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 d eclarations, and assumed for purposes of the case before
it the declarations were the same. A s 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 sufficient ly 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 appl y clearly and unambiguously outside its boundaries. Further, the abortive attempts of the Association over the years to modify or amend the16

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 Colye a r purchased his home. Additionally , the CC&Rs in Citize ns were recorded on the subject proper t y, while Declaration 150 was not recorded on Colye a r’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 rest ated 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

. T he court17

also entered judgment in favor of the individual defendants on the fiduciary duty claim. 6
On February 25, 2021 , the court awarded $1.3 28 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

, a lthough 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, 102 6 ( 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 i t 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, b ecause 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.) T he 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, su p ra, 12 Cal.4th at p. 349
, italics added .) Citizens found it was not merely the intent of th e 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 , t he covenant come s into existence upon sale or transfer of the property. “In essence, if the20

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 propert ies were not bound by the restrictions. In Werner , there was no recorded document imposin g uniform restrictions on the entire subdivision, only individual deeds imposing restrictions on specific parcels

. I n Riley , the restrictions were recorded after the conveyance at issue.21 Here, a pplying the rule recognized in Citizens and its rationale, we conclude the Tree CC of Declaration 150 does not apply to Colyear’s propert y

. 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. A s originally set forth, Declaration 150 covered the narrow strip down the middle of Rolling Hills

. In l ater 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, Colye a r 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 ) t hese references provide constructive or inquiry notice
that the Tree CC in Declaration 150 appl ies to lands annexed
under Declaration 150

- M ; ( 3 ) the extrinsic evidence at trial
establishe d 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 of22

complying the Tree CC in Declaration 150. T hese arguments are unpersuasive

. (1) Declaration 150

- M Do es Not Incorporate
Declaration 150’s Terms
T he 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. )
Furth er, 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, w e 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
do es not express ly 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 or23

its Tree CC

. For example, t he 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 t o interpret and enforce covenants imposed on tracts covered by Declaration 150 , but t his simp ly re cites the Association’s powers as to tracts covered by Declaration 150 . I t does not state that Declaration 150 ’s covenants apply to tracts covered by Declaration 150

- M

. F inally

, 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
T he terms of Declaration 150, including the Tree CC, were not recorded against Colyear’s property. Nevertheless , t he
Association assert s 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 hi s 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 ] cons tructive
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 con cluded 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 declaration s

. A s 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 insert25

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 th at declaration , the buyer can be deemed to have
consented to it. Here, i t 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 accept ed 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 describ ing 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 i n 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 largely26

dependent upon the uncertain recollection and testimony of
interested witnesses.” ( Id. at p. 51 0 .)

(4) Nunn and Russell
T o 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 comment ary on the scope
of the General Plan and Declaration 150 is only dicta

. ( Sonic

Calabasas 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
T he 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. T he 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 Provision s

Do Not Provide an Independent Basis to Trim Colyear’s Trees
The Association asserts certain provisions of Declaration
150

- M (Art

. II, § 2, s ub ds

. (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, su b division (u) permits the Association to trim trees under certain circumstances : The A ssociation 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

prope rty adjoining the same.” Article II, section 2, sub division (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 inc luded in city housing codes or zoning regulations.” Finally, Article II,

s ection 2, sub division (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 th ese provisions do not give the Association power to trim trees on any and all private property
within the Association’s boundaries. B y its plain language,
sub division (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 f ound o n the types of property the Association may control that are similar

to th e 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 s ub division (u) cannot be construed beyond the terms it encompasses. ( See Eisen v.29

Tavangarian (2019) 36 Cal.App.5 th 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 sub division (u) to trim tree s 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 sub division s (j) and (v) are also unavailing . T he language in these provisions is also too general to encompass the Association’s specific right to enter private property and trim trees. Sub division (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 contemplate s 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,
In c. 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

, sub division (v) cannot be extended in the manner the Association

argues

. Subdivision (v) concerns the care of vacant or private property of which the Association take s charge, not private property generally , including property actively managed by its

owner

. Finally, as with sub division (u), if sub divisions (j) and (v) are interpreted as the Association proposes, they render the Tree30

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 Ass n ., Inc. v. Kaleid e sc a pe, 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 Vi llage 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 ) ha ve 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 a t 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
T he 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 wh ich it acts, may be subject to an injunction. ( Berger v. Superior Court (1917) 175 Cal. 719, 721 [ injunction33

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. (19 5 8) 49 Cal.2d 764, 779 [injunction against the corporation is injunction against the directors, acting in their capacity as directors ]

. ) 7 As t here 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 th e 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 the y cannot be individually liable, the Association itself can not be liable . Colyear responds that the trial court’s findings necessarily establish harm because the court enjoined the Association from further breach es 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

r ule 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. (F ed

. R ules Civ. Pro c

. , 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 , t he trial court found that while Colyear’s property would suffer a loss in value if the trees were cut, he had neither attempt ed to sell his property nor was he
dissuaded from doing so because of the Tree CC . T hus, 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

c orrected s tate ment of d ecision, 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 a n order entered February 2 5 , 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 a ssociation and its board members may also be protected from liability u nder 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 es ta blish damages.
T he trial court found no diminution in value of Colyear’s property

. Absent evidence Colyear attempt ed 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 f

ound “ n o 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 of36

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. ( S ee 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 a ny 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 Coast k eeper v. C alifornia Regional Water Quality Control Bd ., etc. (2022) 76 Cal.App.5 th 1, 13.) As Colyear’s declaratory relief action did not “‘address past wrongs,’” it did not establish the requisite proof of37

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, no ne 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 director s 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 the m

. W e 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

. S ection 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 a n association entity, not its individual directors, has standing to prosecute such enforcement actions on its behalf. ( Civ. Code, § 5980.)
We construe s ection s 5975 and 5980 together as authorizing an award of attorney fees against the A ssociation 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 specif icall y apply to i ndividual board members

. R eading 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 A ssociat ion 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 illustrate s 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

. T his 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 land owners seeking to enforce
the Tree CC

, and the trial court made n o 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

. T he 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

. . . . ” T he 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, t he court found a quiet title judgment would “unnecessarily complicate the chain of title.” In light of the declaratory judgment and permanent injunction, the court al so 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. Pro c .,

11 We deny appellants’ motion to strike portions of Colyear’s cross

appellant’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, t he plaintiff must establish an “adverse claim” to the property. (Civ. Pro c ., § 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 q ui e t 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. T he cases upon which he relie s 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 d efendant s “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

. I n Barker v. Barker (1956) 139 Cal.App.2d 206, the parties dispute d whether property was separate or

commu nity 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 claim s

. 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 the ir own costs on appeal.

MORI, J.

We concur:

COLLINS, Acting P.J.

ZUKIN, J.