Palos Verdes Homes Assn. v. Avedon CA2/3

Filed 1/23/23 Palos Verdes Homes Assn. v. Avedon CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PALOS VERDES HOMES B314228
ASSOCIATION, et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. YC033114)
v.
DAVID AVEDON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Deirdre Hill, Judge. Affirmed.
The Law Offices of Charles Peterson and Charles F.
Peterson; Benedon & Serlin, LLP, Malinda W. Ebelhar and Kian
Tamaddoni, for Defendant and Appellant.
Law Offices of Marc A. Mazorow and Marc A. Mazorow;
Jeff Lewis Law, APC, Jeffrey Lewis and Sean C. Rotstan, for
Plaintiffs and Respondents Desiree Myers and William Regan.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant David Avedon fka David Goldhammer (Avedon)
and respondents Desiree Myers and William Regan (Regans) are
neighbors who have been involved in a series of disputes
regarding foliage on Avedon’s property. Their latest dispute
concerns Avedon’s effort to plant eighteen new trees on his
property pursuant to a landscaping plan approved by their
homeowners’ association. The Regans contend those new trees
will severely impact their ocean views.
The last time a dispute like this arose, an arbitrator
appointed by the parties resolved it. Based on his interpretation
of an earlier settlement agreement between the parties, the
arbitrator permitted Avedon to plant new foliage approved by the
homeowners’ association but required him to maintain it in such
a manner as to prevent impairment of the Regans’s ocean views.
This time, the Regans obtained a preliminary injunction
barring Avedon from planting new foliage that will mature to a
height exceeding the limits set by the arbitrator’s ruling. Avedon
contends that the trial court abused its discretion in issuing the
preliminary injunction by basing its ruling on a misinterpretation
of the parties’ settlement agreement, the arbitration award, and
subsequent court orders based on them.
We disagree and conclude that the trial court did not abuse
its discretion in granting the preliminary injunction.
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FACTUAL AND PROCEDURAL BACKGROUND
I. The Regan and Avedon properties
Avedon and the Regans are neighbors who own adjacent
hillside properties in Palos Verdes Estates. Both properties
overlook the Pacific Ocean.
The Regans’s property (Regan Property) is on a higher
elevation than Avedon’s property (Avedon Property) and
overlooks the rear of the Avedon Property. The Avedon Property
is below and to the west of the Regan Property.
Both properties are governed by the Basic Protective
Restrictions, Conditions, Covenants, Reservations, Liens and
Charges of Palos Verdes Estates (CC&Rs). Those CC&Rs grant
the Palos Verdes Homes Association (PVHA) and Palos Verdes
Art Jury (Art Jury) the responsibility for enforcing the CC&Rs.
Relevant here, the CC&Rs provide that “[n]o part of . . . any
property at any time within the jurisdiction of the Art Jury or of
[PVHA] shall be . . . improved by . . . landscaping or planting . . .
except with the approval of the Art Jury . . . .” The CC&Rs
further provide that “[n]o . . . planting shall be erected . . . altered
or maintained upon . . . any property at any time within the
jurisdiction of the Art Jury or of [PVHA] . . . unless plans and
specifications therefor . . . shall have been submitted to, approved
in writing by the Art Jury . . . .”
II. The initial lawsuit and settlement agreement
PVHA filed a lawsuit against Avedon in 1998 regarding
several palm trees and other foliage planted on his property
without PVHA approval. The Regans intervened in the action.
Avedon and the Regans settled the lawsuit the following year and
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entered into a written settlement agreement (Settlement
Agreement).1
The Settlement Agreement’s recitals described the specific
foliage on Avedon’s property at issue: Three Canary Island palm
trees, an olive tree, several bamboo trees, a box tree, and a
pepper tree. According to the recitals in the Settlement
Agreement, Avedon and PVHA agreed that Avedon would remove
the three Canary Island palm trees from his property. In their
place, he was allowed to plant Queen palm trees. Regarding the
remaining foliage, i.e., the olive, bamboo, box, and pepper trees,
Avedon and the Regans agreed that Avedon would trim and
maintain the foliage to heights and in a manner specified in the
Settlement Agreement.
They also agreed that the Regans would maintain a ficus
hedge on the Regan Property (and bordering the Avedon
Property) to a specified height and add four more mature ficus
trees at locations desired by Avedon.
Regarding new plantings on the Avedon Property, Avedon
and the Regans agreed that if Avedon intended to plant a tree or
other vegetation “which now or in the future has the potential of
growing to a height which may impair the Regans’ ocean view,”
Avedon would notify the Regans of his plans. They further
agreed “that the Art Jury or PVHA’s decision on any plantings
proposed by the Parties shall be final and binding on the Parties,”
and that they “shall not have any right to appeal or to object in
any way to the decisions of the Art Jury or PVHA and have
1 PVHA appears to have settled separately with Avedon. It
was not a party to the recent proceedings at issue in this appeal.
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knowingly and voluntarily waived any right to such an appeal or
objection.”
Last, the Regans agreed to dismiss their complaint-in-
intervention against Avedon upon his completion of the tree
trimming as specified in the Settlement Agreement. The Regans
and PVHA dismissed their complaints in March 2000.
III. 2003 amended settlement agreement
The Settlement Agreement included an arbitration clause
covering “any and all disputes, controversies or claims arising out
of or relating to, or the making, performance or interpretation” of
the Settlement Agreement. A few years after entering into the
Settlement Agreement, the Regans initiated arbitration against
Avedon. That arbitration culminated in an amendment to the
Settlement Agreement in January 2003 (Amended Settlement
Agreement).
In the Amended Settlement Agreement, the parties gave
retired “Judge [Victor] Barrera or his successor ultimate
authority to enforce this the underlying Settlement Agreement
and General Release and this Amendment with full discretionary
powers consistent with the following guiding principles and
documents: 1. The maximization of the privacy interests of
[Avedon]. 2. The maximization of the whitewater/ocean views
enjoyed by the Regans. 3. The height restriction/elevations as
contained in the landscape plan concerning the property located
at 1400 Via Lazo . . . .[2] 4. Any and all modifications to either
2 The parties do not explain what property corresponds to
this address, which is neither the address of the Avedon Property
nor the Regan Property. That uncertainty is not material to our
disposition of this appeal.
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party’s landscape plan later approved by the [PVHA] /Palos
Verdes Art Jury.”
The parties further agreed that “[p]ending any necessary
approvals, if any, [Avedon] may plant along the western
boundary of his property a reasonable amount of foliage in a
single landscape plan in order to provide a privacy screen,” and
that in the event of a dispute regarding “what constitutes
‘reasonableness’ or what constitutes a ‘single landscape plan,’
Judge Barrera or his successor shall have full and final authority
to make such a determination.”
They also agreed that “[a]ll tree trimmings on the [Avedon]
property, which affect or may affect the Regans’ ocean view or on
the Regan property affecting the privacy of [Avedon] shall be
performed at the direction of Judge Barrera or his successor.”
Additionally, they agreed that “[a]ny written order made by
Judge Barrera or his successor shall be deemed to be a part of
this Agreement.”
Regarding changes to their landscaping plans, the parties
agreed that “[a]t anytime hereafter, the parties remain free to
petition the [PVHA]/Art Jury in order [sic] modify their current
landscape plan. The [PVHA]/Art Jury shall have full discretion
and shall be the final arbiter as to whether or not to approve
modifications to the landscaping plan of either party.” They also
agreed that the petitioning party has to notify the other party of
the intended modification, and that the non-petitioning party is
“free to provide input” to the PVHA/Art Jury.
Although the parties agreed that the “decision of the
[PVHA]/Art Jury shall become binding and non-appealable,” they
further agreed that such decision “shall be interpreted and
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enforced through this agreement by retired Judge Barrera or his
successor.”
IV. Interim arbitration award
In 2006, Avedon petitioned the PVHA and Art Jury to
approve a new landscaping plan, which included the planting of a
new olive tree and palm trees parallel to the Regans’s ficus hedge
and a new bamboo hedge. The Regans submitted objections to
Avedon’s landscaping plan to the Art Jury, but the Art Jury
approved Avedon’s plan.
The Regans then initiated arbitration. Retired Judge
Gregory C. O’Brien, Jr., Judge Barrera’s successor, visited the
parties’ properties and issued an Interim Arbitration Award
dated June 11, 2007 (Interim Award).
At the outset, the Interim Award resolved whether the
action of the Art Jury “ha[d] preempted further jurisdiction of
this dispute by an arbitrator.” Judge O’Brien concluded “the
answer [was] no,” and that the “parties contemplated the
potential involvement by the Art Jury, but agreed that whatever
action it took was to be ‘interpreted and enforced by the
arbitrator.’ ”
Next, Judge O’Brien issued specific orders regarding the
proposed new foliage. First, he ruled that “to reconcile and
harmonize the determination of the Art Jury with preserving the
ocean views of Regan,” Avedon could plant a bamboo hedge, but it
could not “exceed the height of the ficus hedge behind it, or 12
feet, whichever is higher.”
Second, he ruled that Avedon could “plant the olive and
palm trees approved by the jury, but should be required to
maintain them in a way that does not substantially impact
Regan’s view,” which “might be accomplished by topping,
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thinning and/or lacing the trees periodically when they rise, as
expected, to a height that exceeds the height of the ficus hedge.”
Third, he ruled that Avedon was required to have his
landscaper top a hedge along his driveway “and any other
vegetation intermingled with it (excepting the palm trees, which
should be cleaned and thinned),” to maintain “a clear diagonal
(down slope) line of sight from Regan’s property” as approved in
an earlier landscape plan.
Fourth, he ruled that Avedon’s landscaper “should annually
prune or lace, as appropriate, all vegetation on the [Avedon]
property consistent with” the Interim Award.
Last, Judge O’Brien stated that “it is intended that this
interim award shall be enforceable by a continuing order of the
Superior Court upon a properly noticed petition of either party,
without the need to request my further involvement.”
In July 2007, the Regans petitioned to confirm the Interim
Award. Avedon opposed the petition, contending that “there is no
rational construction of the words ‘interpret and enforce’ which
would equate to the power to nullify the landscaping plans
approved by the PVHA/Art Jury . . . .” According to Avedon, the
arbitrator’s authority to “interpret and enforce” the decisions of
PVHA and/or Art Jury did not include the power to determine
“what the height limits should be for [Avedon’s] landscaping.”
The court was apparently unconvinced by that argument and
confirmed the Interim Award in August 2007.
V. 2011 contempt proceeding
In 2011, the Regans initiated contempt proceedings against
Avedon alleging he had violated the Interim Award. The trial
court appointed an expert to assist the court in determining
whether Avedon was in compliance with the Interim Award.
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The expert submitted his report in June 2011. Relevant
here, the expert recommended “pruning back the olive tree to the
bottom edge of the roof line” to restore ocean views from the
Regan Property, and that it “be laced out of any remaining dense
foliage in conjunction with the pruning . . . to provide more
transparency through the tree.” The expert further concluded
that the “height of the tree is approximately 30′-0″ and can be
maintained at its current height without significant impact to the
tree or blockage of significant views.”
Regarding the driveway hedge, the expert found that it was
“at an overall height of 12′-0″, with the exception of two areas.
The upper portion on the NE property line is at a height of 15′-
0″ . . . . A lower section along the driveway exceeds 12′-0″ in
height for a few feet. . . . Both could be cut back to the 12′-0″
height for consistency as the privacy of [Avedon] would not be
compromised in doing so.”
Based on the expert’s findings, in July 2011 the court ruled
that Avedon was in contempt of the Interim Award (Contempt
Order). The court found that the “olive tree ha[d] not been
sufficiently trimmed and otherwise maintained as its breadth
and density significantly impact[ed] the [Regans’s] ocean view,”
and that the driveway hedge “exceed[ed] the maximum height
restriction of 12′ in height.”
The court’s order required Avedon to take “each and every
corrective measure as recommended” in the expert’s report, and
“perform consistent maintenance of the subject foliage and
vegetation to remain in compliance with the Interim Award of
[the] Arbitrator.” That could be accomplished “by trimming and
pruning the heights/breadths/densities of the respective foliage
and vegetation at or below maximum limits as necessary,”
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including “reducing the breadth and density of the olive tree in
order to restore the coastline view” as depicted in the expert’s
report, “reducing the height” of the driveway hedge “to a height of
12′ above grade,” and “ongoing removal of dead or dying palm
fronds.”
VI. 2020 enforcement order
In June 2020, the Regans again moved for contempt
against Avedon, this time alleging that Avedon had failed to
adhere to the Contempt Order. In particular, the Regans alleged
that Avedon had refused to comply with his duty to “perform
consistent maintenance” on his vegetation and foliage.
Avedon opposed the motion, relying on evidence that from
2012 to 2019, he had retained professional tree trimming services
to maintain the olive tree, palms trees, and hedges as required by
the Contempt Order.
The trial court concluded that the evidence was insufficient
to show that Avedon had willfully disobeyed the Contempt Order.
Even so, the court directed the parties to propose a mutually
agreeable enforcement procedure “to resolve issue re tree
cutting.” After considering proposals from both parties, the court
entered an enforcement procedure order on August 20, 2020
(Enforcement Order).
The Enforcement Order states that the parties “will take
all necessary measures to comply with the [Interim Award] and
[Contempt Order].” It further provided that at either party’s
request, a neutral arborist would inspect the Avedon property “in
order to determine whether the vegetation’s measurements are in
compliance with the Interim Award of Arbitrator and the Court’s
Contempt Order . . . .” If the neutral arborist’s measurements
“are not in compliance with the Interim Arbitration Award and
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Court Order,” then Avedon would have 21 days “to perform the
remedial work” necessary to be in compliance. Afterwards, the
neutral arborist “shall verify full compliance.” If the neutral
arborist determined that “Avedon’s property remains non-
compliant after attempted remediation, then either party shall
have authority to seek an enforcement action (ex parte) in the
Court having jurisdiction of this dispute.”
VII. Preliminary injunction regarding Avedon’s 2021
landscaping plan
In January 2021, Avedon petitioned the PVHA and Art
Jury for approval of a new landscaping plan. The new
landscaping plan proposed planting two Canary Island palm
trees, an oak tree, ten fruitless olive trees, and five pepper trees.3
The Regans did not submit any objections to PVHA or the Art
Jury regarding Avedon’s 2021 landscaping plan. In February
2021, the Art Jury approved Avedon’s landscaping plan.
The Regans then sought a temporary restraining order and
preliminary injunction. They contended that the 2021
landscaping plan included foliage exceeding the height
limitations set forth in the Interim Award and Contempt Order,
and that the new foliage would interfere with their ocean views.
3 The two Canary Island palm trees would replace three
existing Queen palm trees on the northeast corner of the Avedon
Property; the oak tree would replace an existing pine tree at the
center of the property; six of the fruitless olive trees would be
planted along the driveway hedge, and the remaining four would
be planted along eastern boundary of the Avedon Property; and
the five pepper trees would be planted along the eastern
boundary of the Avedon Property.
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According to the Regans, the court had “already ruled on
Defendant’s rights to grow and add vegetation, plants, and trees
and limited the height and density of each.” They further
contended that the balance of equities favored maintaining the
status quo.
The Regans submitted the declaration of Jerry Hernandez,
a landscape architect and contractor, who stated that the foliage
in the 2021 landscape plan would interfere with the Regans’s
views. According to Hernandez’s declaration, Canary Island
palm trees are “much larger in all respects” than Queen palm
trees, which the Canary Island palm trees would replace; the
type of oak tree at issue “grows to about 80 feet tall and has a
canopy 70 feet wide”; the fruitless olive trees grow “about 45 feet
tall and 30 feet wide”; and pepper trees grow “about 50 feet tall
and 50 feet wide.” According to Hernandez, “[i]n all, the Avedon
proposed planting plan would severely impact the Regans’ ocean
view above and beyond what foliage is already planted.”
On February 19, 2021, the court granted a temporary
restraining order barring Avedon from “planting any live plant,
tree, or foliage” on his property pending a hearing on an order to
show cause regarding a preliminary injunction.
Avedon opposed the preliminary injunction request on
several grounds. Among other things, he argued that the dispute
belonged before an arbitrator, not the court; that the Interim
Award and Contempt Order set limits on existing foliage, not
future landscaping; that the parties agreed the Art Jury’s
decisions, including its approval of the 2021 landscaping plan,
would be final and binding; and that the Regans waived any
objection to the 2021 landscaping plan by failing to object to it
before the Art Jury. Last, he contended that the balance of
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equities favored him, because the new landscaping would “not
conflict with PVHA’s policy of protecting primary views” of the
Regans, and because “none of Avedon’s plantings are intended to
grow to the height” described in Hernandez’s declaration.
Avedon’s opposition included the declaration of Miriam
Rainville, a licensed landscape contractor, who designed Avedon’s
2021 landscaping plan. According to Rainville, “[a]ll heights and
materials were carefully specified based on [PVHA] requirements
to address primary and secondary view corridors,” and
“[m]aterials placement and size will not conflict with [PVHA’s]
policy of protecting primary views of [the Regans’s] residence
above.” Furthermore, Rainville stated that she had reviewed the
exhibits and images accompanying Hernandez’s declaration, and
that “Avedon’s landscaping plan does not anticipate his new
plantings will grow to such enormous and magnificent heights
and widths.”
The court held a hearing on April 20, 2021. It first noted
that the Regans’s proposed preliminary injunction 4 was “way too
broad” because it required “no planting.” The court thus
instructed the Regans to resubmit a proposed preliminary
injunction that, instead of barring all new foliage, would bar
Avedon from planting new foliage that at maturity would exceed
12 feet in height. The court stated that its “expectation is not
that [Avedon’s] not going to be allowed to plant any new planting,
period. That’s not what this is for.”
In response to the concerns of the Regans’s counsel that the
Regans’s views could still be affected notwithstanding a height
4 The Regans’s proposed injunction does not appear to be in
the record.
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restriction—because, for example, Canary Island palm trees are
wider than the existing palm trees—the court emphasized that
Avedon “is entitled . . . to some privacy as well,” and that it could
not “tell from this order that it would be something that would
come into play in your client’s view necessarily.”
Avedon’s counsel emphasized that the court was “second-
guessing the [PVHA] and the arborists and the landscape
architects who have already approved these plants in light of the
[PVHA’s] view protection corridors and view protection
processes.” Avedon’s counsel also emphasized that the Regans
should have raised their objections to the PVHA and/or Art Jury,
and that the parties agreed that decisions of the PVHA and/or
Art Jury “would not be in the purview of the Court but would be
in the purview of the arbitrator.”
The court agreed that Avedon’s counsel did “have a point
about the homeowners association’s role,” and asked for the
Regans’s position. In response, the Regans’s counsel emphasized
Judge O’Brien’s ruling, which made clear that the PVHA and/or
Art Jury “does not have the final role” in balancing Avedon’s
privacy and the Regans’s view; and that “since we’ve been in
enforcement now, it’s all with the Court, it’s not with the
[PVHA].” According to the Regans’s counsel, if the court’s view
was that Avedon’s foliage could not “exceed 12 feet in height,
then that’s fine. That’s what the arbitration award says.” He
further argued that “if we’re going to throw that completely out
and say, well, no, now the [PVHA] has the final word,” it
“nullifies everything that we’ve done in this case for the last 12
years.”
The court took the matter under submission and issued a
minute order later that same day. The court’s minute order
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concluded that “the purpose of the Enforcement Order is to keep
the foliage on Avedon’s property cut to a height to maintain
Regan’s view while still allowing for privacy. Given that intent,
the order delineates existing foliage. Given the clear intent of the
order being to preserve the view, the court finds that the order
applies to all foliage—both the existing foliage and any new
foliage which may be introduced to the area.” The court further
found that Hernandez’s declaration “supports the conclusion that
the new installation plan would severely impact the Regan’s
view.”
Last, the court ruled that “[a]part from the homeowner’s
association’s consideration of the new plantings, the plan itself
has to comport with the parties’ private agreement and the
outline set forth by the court in the prior orders.”
Consistent with the court’s instruction at the hearing, the
minute order directed the Regans “to revise the proposed order to
specify that no planting known to mature to an elevation
prohibited by the court order is to be planted. The arbitrator
and/or court is to determine compliance with the parties’
agreement as to any new plantings.”
The court entered the preliminary injunction on June 2,
2021. The preliminary injunction reiterated the above-described
conclusions from the minute order, and enjoined Avedon “from
engaging in any of the following activities: [¶] 1. Planting on the
real property commonly known as 1400 Via Montemar, Palos
Verdes Estates, California (‘the Avedon Property’) any foliage
known to mature to an elevation that exceeds the limitations set
forth in either Interim Award of Arbitrator issued June 11, 2007,
or this Court’s Contempt Order dated July 11, 2011. [¶] 2. The
compliance with of [sic] the restrained parties as to any new
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plantings shall be determined by either the Court having
jurisdiction of this dispute, or the Arbitrator appointed in
compliance with the settlement agreement of the parties dated
September 17, 1999.”
Avedon timely appealed.5
DISCUSSION
I. Legal principles and standards of review
“In determining whether to issue a preliminary injunction,
the trial court considers two related factors: (1) the likelihood the
plaintiff will prevail on the merits of its case at trial, and (2) the
interim harm the plaintiff is likely to sustain if the injunction is
denied as compared to the harm the defendant is likely to suffer
if the court grants a preliminary injunction.” (Husain v.
5 The Regans argue that Avedon’s appeal is untimely for two
reasons. First, they contend his appeal is a disguised challenge
to the trial court’s earlier orders (i.e., the order confirming the
Interim Award, the Contempt Order, and the Enforcement
Order), which Avedon did not appeal. Second, they contend
Avedon failed to file his notice of appeal within 60 days of the
court’s April 20, 2021 minute order.
We conclude the appeal is timely. Avedon appeals from the
trial court’s grant of a preliminary injunction and does not seek
reversal of any of the trial court’s earlier orders. Nor was Avedon
required to appeal the court’s April 20, 2021 minute order to
preserve the present appeal. That minute order directed that a
revised order be prepared. Hence, it is the court’s revised order
granting the preliminary injunction, filed on June 2, 2021, that is
the appealable order. (See Cal. Rules of Court, rule 8.104(c)(2)
[stating that “if the minute order directs that a written order be
prepared, the entry date is the date the signed order is filed”].)
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McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866–867.) “ ‘The
latter factor involves consideration of such things as the
inadequacy of other remedies, the degree of irreparable harm,
and the necessity of preserving the status quo.’ ” (Id. at p. 867.)
“The trial court’s determination must be guided by a ‘mix’ of the
potential-merit and interim-harm factors; the greater the
plaintiff’s showing on one, the less must be shown on the other to
support an injunction.” (Butt v. State of California (1992) 4
Cal.4th 668, 678.)
“Generally, the ruling on an application for a preliminary
injunction rests in the sound discretion of the trial court.” (Cohen
v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) “We review
an order granting a preliminary injunction under an abuse of
discretion standard.” (People ex. rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1109; see also Teachers Insurance & Annuity Assn.
v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 [“The decision [to
grant a preliminary injunction] will only be reversed when the
trial court has abused its discretion as to either factor.”].)
“Notwithstanding the applicability of the abuse of
discretion standard of review, the specific determinations
underlying the superior court’s decision are subject to appellate
scrutiny under the standard of review appropriate to that type of
determination.” (Smith v. Adventist Health System/West (2010)
182 Cal.App.4th 729, 739.) “For instance, the superior court’s
express and implied findings of fact are accepted by appellate
courts if supported by substantial evidence, and the superior
court’s conclusions on issues of pure law are subject to
independent review.” (Ibid.)
Importantly, “[t]he granting or denying of a preliminary
injunction does not constitute an adjudication of the ultimate
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rights in controversy.” (Cohen v. Board of Supervisors, supra, 40
Cal.3d at p. 286.) “It merely determines that the court, balancing
the respective equities of the parties, concludes that, pending a
trial on the merits, the defendant should or that he should not be
restrained from exercising the right claimed by him.”
(Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.)
Indeed, “[t]he abuse-of-discretion standard acknowledges that the
propriety of preliminary relief turns upon difficult estimates and
predictions from a record which is necessarily truncated and
incomplete. . . . The evidence on which the trial court was forced
to act may thus be significantly different from that which would
be available after a trial on the merits.” (Butt v. State of
California, supra, 4 Cal.4th at p. 678, fn. 8.)
II. The trial court did not abuse its discretion in
granting a preliminary injunction
A. The injunction was preliminary, not permanent
Before reaching the merits of Avedon’s appeal, we address
the nature of the injunction at issue. The Regans contend the
preliminary injunction is “more properly labeled a permanent
injunction” because “[n]o trial is scheduled in this matter” and
“no issue of Avedon’s liability to the Regans remains to be
determined.” During oral argument, Avedon did not dispute that
characterization of the injunction.
Even so, we decline to treat the injunction as permanent for
purposes of this appeal. Although no trial is scheduled, it
appears from both the trial court’s minute order and the
preliminary injunction that the trial court contemplated
additional proceedings after the issuance of the injunction. In the
court’s April 20, 2021 minute order granting the injunction, the
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court stated that “[t]he arbitrator and/or court is to determine
compliance with the parties’ agreement as to any new plantings.”
In the injunction itself, the court stated that “compliance with of
[sic] the restrained parties as to any new plantings shall be
determined by either the Court having jurisdiction of this
dispute, or the Arbitrator . . . .” We understand these provisions
as anticipating not only further proceedings to determine
whether Avedon’s new plantings violate the guidelines of the
Interim Award and Contempt Order, but also whether revised
guidelines may be warranted because of Avedon’s 2021
landscaping plan.
That leads us to the second and related point: If we were to
treat the injunction as permanent, it would supplant the
potential role of the arbitrator in resolving the parties’ dispute.
As noted, the Amended Settlement Agreement endowed the
arbitrator, not the court, with the authority to “interpret[] and
enforce[]” Art Jury decisions. The Interim Award establishes
that such authority includes some degree of discretion to
determine the appropriate accommodation between Avedon’s
ability to plant new foliage in accordance with the Art Jury’s
approval of his landscaping plan, and the Regans’s ocean views.6
By confirming the preliminary nature of the trial court’s
injunction, we ensure the arbitrator retains the discretion
granted him by the parties to finally resolve their current
6 Avedon contends that neither the Settlement Agreement
nor Amended Settlement Agreement authorizes the arbitrator to
“block any planting approved by the Art Jury.” We need not
resolve that issue, because the arbitrator has not yet reached any
determination regarding Avedon’s ability to implement his 2021
landscaping plan.
19
dispute.7 Of course, if the parties want the preliminary
injunction to be converted into a permanent one, nothing in this
decision prevents them from making that request in further
proceedings before the trial court.
B. The Regans demonstrated a likelihood of
success on the merits
We conclude that the trial court correctly determined that
the Regans demonstrated “there is some possibility that [they]
would ultimately prevail on the merits of [their] claim.” (Butt v.
State of California, supra, 4 Cal.4th at p. 678.) Specifically, we
agree with the trial court that the Enforcement Order—which
authorized the trial court to oversee compliance with the Interim
Award and Contempt Order—applies both to existing and new
foliage, including the foliage at issue in Avedon’s 2021
landscaping plan.8
7 Whether the parties will proceed to arbitration regarding
Avedon’s 2021 landscaping plan is not clear. According to
evidence submitted in opposition to the request for preliminary
injunction, Avedon asked the Regans to stipulate to submit their
dispute to arbitration. The Regans’s counsel responded that the
request was “not well-taken,” but invited Avedon to file a motion
to compel arbitration. At oral argument, counsel for Avedon
advised us that no arbitration proceeding is currently pending
between the parties.
8 Avedon contends that we must independently review the
trial court’s interpretation of the Enforcement Order, Contempt
Order, Interim Award, and settlement agreements. While Avedon
may be correct about the scope of our review as a general matter,
we are cautious about intruding on the role of the arbitrator. The
Amended Settlement Agreement provides that the arbitrator has
20
Avedon disagrees, contending that neither the Interim
Award nor Contempt Order, nor the Enforcement Order based on
them, extended beyond then-existing foliage. He thus argues
that the trial court erred by concluding that the Enforcement
Order “applies to all foliage—both the existing foliage and any
new foliage which may be introduced to the area.”
We agree with Avedon that the restrictions imposed by the
Interim Award—for example, restricting Avedon’s bamboo hedge
to the height of the Regans’s ficus hedge behind it, requiring him
to maintain his olive and palm trees in a manner “that does not
substantially impact [the Regans’s] view,” and requiring him to
maintain his driveway hedge to preserve “a clear diagonal (down
“ultimate authority to enforce” the Settlement Agreement and
Amended Settlement Agreement consistent with the four listed
“guiding principles and documents,” and that “[a]ny written order
made by Judge Barrera or his successor”—including the Interim
Award—“shall be deemed to be a part of this Agreement.” We do
not want to interfere with the arbitrator’s primary role in
enforcing the Interim Award and settlement agreements. Thus,
for purposes of the preliminary injunction, we are satisfied that
the trial court’s interpretation of these agreements and orders
was not erroneous.
Regarding the standard of review, the Regans argue that
the standard of review applicable to permanent injunctions
applies here, and that Avedon’s allegedly mistaken application of
the standard of review applicable to preliminary injunctions
should result in us finding that he has forfeited his arguments.
Given our view that the trial court’s injunction was a preliminary
one, we reject the Regans’s argument. In any event, as is
apparent from comparison of the parties’ briefs, they agree on the
applicable standards of review.
21
slope) line of sight from [the Regans’s] property”—concerned the
specific foliage at issue in Avedon’s 2006 landscaping plan. We
also agree with Avedon that the Contempt Order concerned that
same foliage, which Avedon had failed to maintain in accordance
with the Interim Award. Last, we agree with Avedon that the
purpose of the Enforcement Order was to ensure that Avedon
maintained that same foliage in accordance with the restrictions
in the Interim Award and reaffirmed in the Contempt Order.
But we disagree with Avedon’s further assertion that the
restrictions imposed by the Interim Award and Contempt Order,
made enforceable through the Enforcement Order, applied only to
the then-existing foliage and no further. The purpose of the
Interim Award was to balance Avedon’s right to plant and
maintain new foliage on his property in accordance with the 2006
landscaping plan, and the Regans’s right to enjoy their ocean
views. The arbitrator made that clear in describing the Interim
Award as his effort to “reconcile and harmonize the
determination of the Art Jury with preserving the ocean views” of
the Regans.
The Contempt Order reaffirmed that balance, requiring
Avedon to “perform consistent maintenance of the subject foliage
and vegetation to remain in compliance with the Interim Award,”
including “by trimming or pruning the heights/breadths/densities
of the respective foliage and vegetation at or below maximum
limits as necessary.” So too did the Enforcement Order, which
created an enforcement mechanism for both the Interim Award
and Contempt Order.
It would upend that balance to narrowly interpret the
Interim Award, which is part of the Amended Settlement
22
Agreement,9 and the Contempt Order and Enforcement Order
following it, as imposing limits on then-existing foliage but no
limits whatsoever on new foliage. (See Roden v.
AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 651 [“[W]e
must interpret a contract in a manner that is reasonable and
does not lead to an absurd result.”]; Dieckmeyer v. Redevelopment
Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 259
[court strives to interpret contract “in a way that is both
reasonable and carries out the intended purpose of the
contract”].) Under Avedon’s interpretation of the Interim Award,
Contempt Order, and Enforcement Order, he would be free to
substantially impair the Regans’s ocean views so long as he does
so with new foliage rather than existing foliage. We think the
trial court reasonably rejected that interpretation of the Interim
Award, Contempt Order, and Enforcement Order, which would
have rendered their restrictions wholly ineffectual.
Relatedly, Avedon argues that the trial court erred by
concluding that the purpose of the Enforcement Order (and thus
the Interim Award and Contempt Order upon which it is based)
“was to absolutely preserve the Regans’ view to the detriment of
Avedon’s right to change his landscaping.” That contention is
belied by the preliminary injunction, which permits Avedon to
change his landscaping and restricts him only from planting new
foliage “known to mature to an elevation” in excess of the Interim
9 As noted, the Amended Settlement Agreement provides
that “[a]ny written order made by Judge Barrera or his
successor”—which includes the Interim Award—“shall be deemed
to be a part of this Agreement.”
23
Award or Contempt Order.10 And as we have stressed already,
the preliminary injunction does not prevent Avedon from
returning to the arbitrator, who may determine that the
restrictions in the Interim Award should be revised to
accommodate the Art Jury’s approval of his 2021 landscaping
plan. Nothing in our decision bars that outcome.
As is probably evident already, we also disagree with
Avedon’s argument that the trial court erred in granting the
preliminary injunction because the Art Jury’s approval of his
2021 landscaping plan is not subject to review by the court or the
arbitrator, or otherwise restricted by the parties’ settlement
agreements. According to Avedon, the Settlement Agreement
and Amended Settlement Agreement preserved the parties’
ability to petition PVHA and/or the Art Jury to modify their
landscaping plans and established that the decisions of those
bodies are final, binding, and non-appealable. Thus, he argues
that the trial court erred in determining that his 2021
landscaping plan “has to comport with the parties’ private
agreement and the outline set forth by the court in the prior
orders.”
True, the Settlement Agreement provides that “the Art
Jury or PVHA’s decision on any plantings proposed by the Parties
shall be final and binding,” and that the parties “shall not have
10 Avedon contends that this aspect of the injunction is
overbroad because it restricts Avedon’s ability to plant anything
“that has the potential to exceed the limits set forth in the
Interim Award or the Contempt Order, even if it could be
trimmed to stay within the specified limits.” But Avedon has not
requested that we limit the injunction in this respect. Nor has he
established that he first raised this concern to the trial court.
24
any right to appeal or to object in any way to the decisions of the
Art Jury or PVHA and have knowingly and voluntarily waived
any right to such an appeal or objection.” Likewise, the Amended
Settlement Agreement provides that “the parties remain free to
petition the [PVHA]/Art Jury in order [to] modify their current
landscape plan,” and that those bodies “shall have full discretion
and shall be the final arbiter as to whether or not to approve
modifications to the landscaping plan of either party.” If these
were the final words on the subject, Avedon’s arguments might
have some force.
However, we must look to the whole of the parties’
agreement. (See Civ. Code, § 1641 [“The whole of a contract is to
be taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other.”].) The
Amended Settlement Agreement, which was intended by the
parties to “clarify and/or resolve certain ambiguities contained in
the Settlement Agreement,” provides that the “decision of the
[PVHA]/Art Jury shall become binding and non-appealable, but
shall be interpreted and enforced through this agreement by
retired Judge Barrera or his successor.” Thus, the parties agreed
that the decisions of the PVHA and/or Art Jury would be subject
to some degree of further review, at least with the arbitrator,11
despite being “binding and non-appealable.”
11 Once an arbitrator renders an award, a party can petition a
superior court to confirm the award. (Code Civ. Proc., § 1285.) If
the superior court confirms the arbitration award, “judgment
shall be entered in conformity therewith” and such judgment
“may be enforced like any other judgment” of the court. (Code
Civ. Proc., § 1287.4.) Hence, even the arbitrator’s decision is
25
The Interim Award confirms that. It specifically rejected
the argument that the Art Jury’s approval of Avedon’s 2006
landscaping plan “preempted further jurisdiction of [that] dispute
by an arbitrator.” Moreover, the superior court granted the
Regans’s petition to confirm the Interim Award notwithstanding
Avedon’s argument, similar to the one he raises here, that the
arbitrator’s power to “interpret[] and enforce[]” the Art Jury’s
2006 decision did not include the authority “to make his own
determination of what the height limits should be for [Avedon’s]
landscaping.” As a result, we conclude the Art Jury’s approval of
Avedon’s 2021 landscaping plan is reviewable in the manner
described herein.
In sum, at least at this preliminary injunction stage, we
affirm the trial court’s conclusion that the Enforcement Order,
which incorporated the provisions of the Interim Award and
Contempt Order, applies both to existing and new foliage on
Avedon’s property.12
subject to further review—the Regans’s petition to confirm the
Interim Award proves that point.
12 Because we affirm the trial court’s preliminary injunction
for these reasons, we do not reach the Regans’s arguments that
Avedon’s appeal is barred by his failure to appeal the Interim
Award or Contempt Order or barred by the doctrines of collateral
estoppel and/or invited error. Nor do we address the second
injunction factor, i.e., “the interim harm the plaintiff is likely to
sustain if the injunction is denied as compared to the harm the
defendant is likely to suffer if the court grants a preliminary
injunction” (Husain v. McDonald’s Corp., supra, 205 Cal.App.4th
at pp. 866–867), because Avedon has not challenged that aspect
of the trial court’s order.
26
III. Motion to strike
The Regans have moved to strike five purportedly
“questionable factual statements” from Avedon’s opening brief.
Avedon opposes the motion, contending that each of the
challenged statements is reasonably supported by record.
We deny the Regans’s motion to strike. To the extent any
of Avedon’s challenged statements are not supported by the
record, we disregard them. (See Cal. Rules of Court, rule
8.204(e)(2)(C).)
DISPOSITION
We affirm the trial court’s order granting a preliminary
injunction. We deny the Regans’s motion to strike. The parties
shall each bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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