Filed 5/18/15 The Villas in Whispering Palms v. Tempkin CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE VILLAS IN WHISPERING PALMS, D065232

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2012-00053853-

CU-BC-NC)

RICHARD M. TEMPKIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Affirmed.

McDougal, Love, Eckis, Boehmer & Foley and Steven E. Boehmer, M. Anne

Gregory for Defendant and Appellant.

Epsten Grinnell & Howell and Anne L. Rauch, Carrie Timko for Plaintiff and

Respondent.

Defendant and appellant Richard Tempkin appeals from a judgment in favor of

plaintiff and respondent The Villas in Whispering Palms (Villas) following a bench trial

on Villas' complaint in which Villas sought injunctive relief and damages for Tempkin's breach of its governing documents, particularly Villas' pet restriction provision permitting

one dog per household (the pet restriction or rule). In part, the trial court rejected

Tempkin's arguments that the pet restriction is unreasonable and Villas' enforcement of

the rule arbitrary and capricious, and that Villas treated Tempkin differently than other

homeowners with respect to his violations and variances. On appeal, Tempkin contends:

(1) the trial court failed to set forth its legal analysis for its ruling that Villas' enforcement

of the pet restriction was not arbitrary and capricious; (2) the court erred by finding Villas

had provided waivers, as opposed to variances, pertaining to the rule; (3) the pet

restriction is unreasonable as a matter of law because it was not applied in a uniform and

fair manner; and (4) Villas' board acted unreasonably by failing to follow a governing

variance provision and refusing him the right to apply for a variance. We affirm the

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We state the factual background from the undisputed facts and evidence in the

record and from the trial court's final statement of decision. (See In re Marriage of

Schmir (2005) 134 Cal.App.4th 43, 49-50 [appellate court is not limited to facts or

evidence cited in trial court's statement of decision but review extends to the entire

record].) Villas is a nonprofit corporation that is organized under the Davis-Stirling

Common Interest Development Act (former Civ. Code, § 1350 et seq., repealed by Stats.

2012, ch. 180, § 1, operative Jan. 1, 2014; now Civ. Code, § 4000 et seq.) and subject to

governing documents including an amended and restated declaration of restrictions

2 (CC&Rs). Villas has 98 units. It is governed by a five-member board of directors (the

board).

Since the Villas' inception in 1979, its governing documents have included a

provision that permits each household to have only one dog. In 1998, Villas added a

provision to its CC&Rs allowing variances to be granted without limitation to specified

use restrictions, including the pet restriction. The provision states that variances are to be

in writing and would become effective upon final approval by the board or authorized

committee.

In early 2003, the board notified homeowners that it had become aware of a

number of homeowners with two dogs and had decided that homeowners would no

longer be allowed more than one dog, and those who currently had two dogs would be

able to keep them unless they disrupted the community but once the dog had died or was

no longer in the home, owners would not be allowed to replace it. Thus, the board

granted every homeowner with two dogs a variance on the above-mentioned conditions

without homeowners having to submit a written application. In 2005, the board became

aware that several homeowners still had more than one dog. It decided to conduct a

survey to identify those homeowners and also ascertain whether the homeowners wished

to retain the pet restriction. Pending survey results, the board suspended its violation

procedures. The survey showed the majority of homeowners wished to retain the

restriction, but also voted to permit owners to be granted a variance to the rule. The

board required those owners to request a variance by letter and to agree they would not

replace the dog if it died or was removed from the home, and would remove one of the

3 dogs if there were three complaints within a year. Ultimately, the board granted four

variances to homeowners with two dogs, under the specified conditions. The board

notified homeowners that from that point forward the pet restriction would be strictly

enforced. Thereafter, the board enforced the pet restriction against an owner in 2008,

sending four violation letters to her and eventually fining her for her violation. In mid-

2009, that owner was invited to attend a board hearing on the matter to present her

position, given the opportunity to provide documentation to establish she had resolved

the violation, and told that if she did not correct it, further enforcement could include

legal action.

In 2010, Tempkin moved into the Villas. Though he read the CC&Rs, he did not

notice the pet restriction. About a month later, Tempkin's friend moved into Tempkin's

unit with her adult dog. In February 2011, they brought a second dog into the home due

to the age of the first dog and their desire to have a transition period for the older dog to

"mentor" the younger.

In April and July 2011, Villas sent Tempkin violation letters stating it had received

a report that he had two dogs in his residence and asking him to take steps to comply with

the pet restriction. In August 2011, Villas invited Tempkin to attend an executive session

of the board to discuss the matter. He did so and explained his position, asking that he be

granted the same variance that other homeowners had received in the past. In November

2011, the board, responding to Tempkin's request for information, advised him in writing

that in 2005 it had commissioned a survey of homeowners about the rule and that a

majority had voted to retain the rule but "grandfather" in those who already had two dogs,

4 and thereafter four variances were granted. It advised Tempkin that since that time, four

homeowners were required to give up one of their two dogs, and that the board had

decided to continue to enforce the pet restriction. The board told Tempkin "[t]here will

be no further variances given and the policy will continue to be enforced on a consistent

and continuous basis." Villas began assessing fines on Tempkin in January 2012.

In May 2012, Villas sued Tempkin. It sought a permanent injunction requiring

him to comply with the CC&Rs and remove one of his dogs as well as damages based on

Tempkin's failure to pay fines. The matter proceeded to a bench trial after which the trial

court issued an initial statement of decision. Tempkin objected on grounds the decision

did not accurately describe his arguments, omitted findings on critical issues, and failed

to state the legal basis for the court's decision.1 After considering argument on

Tempkin's objections in an unreported hearing, the court issued its final statement of

decision. It ruled Villas had proved Tempkin violated a valid and enforceable provision

of the CC&Rs, and Tempkin was given "multiple opportunities to both explain his

1 In part, Tempkin asserted the initial statement of decision omitted the following findings on critical issues: "All enforcement of the [pet restriction] after 2005 occurred after Tempkin requested a variance" and "Tempkin remained consistent with his request for a variance because he expressly disagreed with the basis of the denial." Tempkin further objected that the trial court had omitted the "legal basis" for its decision, but that objection was based on the following argumentative statements: "[Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 383 (Nahrstedt)], holding that the enforcement of a restriction set forth in CC&R's must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied should be the legal standard applied in this matter and the Initial Statement of Decision omits a legal analysis" and "Tempkin asserts that the HOA Board may not deny the identical rights, the granting of a variance, exception or waiver in connection with the [pet restriction], which has not been modified and has been operative since 1999." 5 position, and seek a variance." It found unpersuasive Tempkin's contentions that he was

treated differently regarding his violation and request for variance and that he was denied

due process. As for Tempkin's claim of disparate treatment concerning fines, the court

found that "[w]hile . . . some fines were dismissed, this was only after amicable

resolution of the violation . . . [and] fines for similar violations were collected." On the

claim of Villas' unreasonable enforcement of the pet restriction, the court ruled: "The

evidence supports that [Villas] has applied its 'one[-]dog rule' evenly, since 2005.

[Villas] seeks informal resolution, followed by official notification and hearing. Each

violator was given the opportunity to remedy the situation before being fined. If this did

not resolve the issue, escalating fines were imposed. This is precisely the path taken with

[Tempkin]. [Tempkin's] argument that he should be treated the same as people who had

variances given in 2005, is not persuasive."

Tempkin filed this appeal from the ensuing judgment.

DISCUSSION

I. Sufficiency of Statement of Decision

Tempkin contends the trial court prejudicially erred and the judgment must be

reversed because it did not set out "legal analysis" for its conclusion that Villas'

enforcement of the one dog rule was not arbitrary and capricious. (See Lamden v. La

Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 265-266

(Lamden) [association must show that exercise of its enforcement power is fair and

nondiscriminatory, that it followed its own standards and procedures before pursuing a

remedy, that its procedures are fair and reasonable, and that its decision was in good

6 faith, reasonable, and not arbitrary and capricious].) He argues the court's final statement

of decision "failed to consider the factors and conditions the Board used to grant prior

variances or provide any findings regarding the Board's failure to uniformly and fairly

apply the one[-]dog rule . . . ." and was deficient because "it only considered enforcement

of the one[-]dog rule from post variance in 2005 to the time of trial." Tempkin further

contends the trial court erred by failing to set out its "legal analysis as to whether [he]

was treated differently and unfairly when he was not permitted to go through the variance

process as other homeowners had done in the past."

A. Legal Principles

A trial court's statement of decision " 'is required to resolve all material issues of

fact, not law.' " (Bandt v. Board of Retirement (2006) 136 Cal.App.4th 140, 163.) The

statement " ' "is sufficient if it fairly discloses the court's determination as to the ultimate

facts and material issues in the case." ' " (Pannu v. Land Rover North America, Inc.

(2011) 191 Cal.App.4th 1298, 1314, fn. 12.) The court is not required to make an express

finding of fact on every legal or factual matter controverted at trial, so long as the

statement of decision sufficiently disposes of all the basic issues in the case. (Pannu, at

p. 1314, fn. 12; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547,

559; In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736-737, fn. 15.) Further,

"[t]he main purpose of an objection to a proposed statement of decision is not to reargue

the merits, but to bring to the court's attention inconsistencies between the court's ruling

and the document that is supposed to embody and explain that ruling." (Heaps v. Heaps

(2004) 124 Cal.App.4th 286, 292.)

7 Even in cases where the trial court has failed to make findings " 'on a material

issue which would fairly disclose the trial court's determination . . . if the judgment is

otherwise supported, the omission to make such findings is harmless error unless the

evidence is sufficient to sustain a finding in the complaining party's favor which would

have the effect of countervailing or destroying other findings.' " (Sperber v. Robinson

(1994) 26 Cal.App.4th 736, 745.)

B. Analysis

Initially, we observe that Tempkin's objections below (see footnote 1, ante) do not

correspond with his arguments on appeal, and thus Tempkin did not bring the specific

omissions and ambiguities he raises now to the attention of the trial court. (Code Civ.

Proc., § 634; accord, In re Marriage of Schmir, supra, 134 Cal.App.4th at p. 49.) He has

thereby forfeited any such contention. (McBride v. Board of Accountancy of State of

California (2005) 130 Cal.App.4th 518, 527.) Additionally, most of Tempkin's

objections do not conform to the purpose or function of proper objections to a statement

of decision. (See Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at

pp. 559-560 [argumentative specifications of factual issues, and request to reflect the

details of the court's reasoning process or the contentions of the parties "failed entirely to

perform [the] function [of a statement of decision]"].)

Here, the trial court made specific findings of fact pertaining to the principal

controverted issue, namely, Villas' historical enforcement of the pet restriction and its

enforcement with respect to Tempkin. Specifically, it found the rule was not enforced

8 until sometime between 2003 and 2005;2 Villas' board provided waivers to everyone

having more than one dog at that time but the waiver only applied to dogs then residing at

the residence, and if the dog died or moved away, the waiver ended; one person was

given a variance because she had a medical disability and her second dog was a service

dog; the only variance granted after 2005 was based upon a medically necessary service

dog; the board heard Tempkin's requests to keep the extra dog and he was given multiple

opportunities to explain his position and request a variance; no evidence showed

Tempkin needed a service dog; no evidence showed Villas ever provided a variance for

dog mentoring; and the board dismissed some fines after amicable resolution of the

matter, but collected fines for similar violations. As summarized above, it ruled the

board applied the rule "evenly, since 2005," and explained its conclusion with specific

findings.

2 This particular finding is supported by substantial evidence, including the testimony of Nancy Sackheim, a board member from 1991 to 1993, 1996 to 2008 and 2011 to mid-2013, who testified in her deposition that she was unaware of any enforcement of the one dog rule from 1991 to 2002; that the board did not use the fine process in connection with the rule before 2003; and she did not personally take action to enforce the rule before 2003 despite seeing a neighbor walking two dogs. Based on the evidence supporting the trial court's finding, we reject Villas' claim, in part based on Tempkin's assertion that the pet restriction was not enforced between 1979 and 2003 and other similar assertions, that Tempkin forfeited any sufficiency of the evidence challenge by reciting facts solely in his favor. Villas references other arguments made by Tempkin that assertedly ignore evidence in Villas' favor. For example, it claims Tempkin contradicted evidence in Villas' favor when he states: " 'It was only after Tempkin notified the Board of Ms. Rosenberg's violation that the Board took any action against her to enforce the one-dog rule.' " But the board member who testified on that point stated, "The timing in there is real close. It's right about the same time that one of our board members went to her to find out . . . . And we were starting the process with her." We disagree that Tempkin's brief so unfairly recites the facts as to constitute a forfeiture of his sufficiency of the evidence arguments. 9 The court's findings fairly reflect its recitation of ultimate facts and basis for

rejecting Tempkin's assertion of arbitrary or selective enforcement and Villas' alleged

disparate treatment. Tempkin provides no authority indicating the trial court must engage

in "legal analysis" in its statement of decision, and we have found none. As stated, the

court was not required to make specific factual findings on every evidentiary or legal

point, or explain the details of its reasoning process. (Yield Dynamics, Inc. v. TEA

Systems Corp., supra, 154 Cal.App.4th at p. 560.)

C. Waiver Argument

In an associated argument, Tempkin argues the trial court erred by finding Villas

provided "waivers" to the one-dog rule between 2003 and 2005 when the record showed

they were actually variances, and that the record is absent clear and convincing evidence

to support a finding that Villas waived its right to enforce the rule. He contends the court

committed "legal error" by not applying the proper analysis of Nahrstedt, supra, 8

Cal.4th 361, and the error was prejudicial because it caused misapplication of the law,

which was reflected in the court's failure to determine in its statement of decision how

variances were given in 2003 and 2005, and whether the procedure was uniformly and

fairly applied by the board or whether the rule was selectively enforced against him. He

repeats his complaint that the court did not provide any analysis or findings regarding the

variance process before 2005.

Villas agrees with Tempkin that there is no evidence to show it waived or

relinquished any right to enforce its pet restriction. It suggests the trial court used the

words waiver and variance interchangeably, and there is nothing indicating the court

10 applied an incorrect standard or more stringent burden of proof as a result. Villas argues

the trial court applied the correct standard of judicial deference to the board's exercise of

its discretion in denying Tempkin's request for variance, and thus any misstatement in its

use of the term "waiver" is harmless.

Tempkin did not object below concerning the trial court's use of the term "waiver"

in its statement of decision, and for that reason he has forfeited this contention. (McBride

v. Board of Accountancy of State of California, supra, 130 Cal.App.4th at p. 527.) And

we have already rejected Tempkin's claim that the court's statement of decision was

deficient for misapplication of the law or failure to set out findings and analysis on Villas'

variance process preceding 2005, arguments that Tempkin repeats in connection with his

waiver argument. The evidence at trial was that the board granted variances, not waivers,

to several homeowners in 2005 after considering its survey of the homeowners pertaining

to the pet restriction.3 There is no indication that the court imposed any clear and

convincing burden of proof on the parties, or required Tempkin to meet any more

stringent burden of proof at trial in proving his claim of arbitrary, discriminatory, or

selective enforcement of the governing rules. The trial court's use of the term "waiver,"

which had no impact on the respective burdens of proof on the parties, was of no

consequence and even if it could be somehow characterized as error, it is manifestly

harmless.

3 We observe Villas' management company in 2009 referred to a previously granted variance as a "waiver" in a letter to a homeowner concerning her two dogs. It appears Villas at times used the terms interchangeably. 11 Because Tempkin has not demonstrated deficiencies in the trial court's statement

of decision, "[w]e view the facts most favorable to the judgment under the principle

requiring us to presume the lower court's judgment is correct, and draw all inferences and

presumptions necessary to support it. [Citations.] ' "Where [a trial court's] statement of

decision sets forth the factual and legal basis for the decision, any conflict in the evidence

or reasonable inferences to be drawn from the facts will be resolved in support of the

determination of the trial court decision." ' " (Chapala Management Corp. v. Stanton

(2010) 186 Cal.App.4th 1532, 1535.)

II. Reasonableness of the Pet Restriction

Tempkin contends Villas' pet restriction is unreasonable and unenforceable as a

matter of law because the trial evidence shows it was not applied in a uniform and fair

manner. He points to evidence of the blanket variance granted in 2003, the individual

variances in 2005, and the fact that after 2005 the board made some efforts to enforce the

rule. From this, Tempkin contends it is undisputed the rule "has not been applied in a

uniform and fair manner by the Villas" (underlining omitted) and that he was denied

rights—the right to apply for a variance and the variance itself—given to other

homeowners. The sole authority cited by Tempkin in support of his contentions is

Nahrstedt, supra, 8 Cal.4th at p. 381.

Under former Civil Code section 1354, a common interest development's CC&Rs

are "enforceable equitable servitudes, unless unreasonable . . . ." (Former Civ. Code,

§ 1354, subd. (a); Nahrstedt, supra, 8 Cal.4th at p. 380; Liebler v. Point Loma Tennis

Club (1995) 40 Cal.App.4th 1600, 1609.) The "unless unreasonable" language means

12 that restrictions set out by the governing documents of a common interest development

are presumptively reasonable, and can be enforced "unless they are wholly arbitrary,

violate a fundamental public policy, or impose a burden on the use of affected land that

far outweighs any benefit." (Nahrstedt, at p. 382; accord, Villa De Las Palmas

Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 88, 91; Pinnacle Museum Tower

Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 238-239.)

In Nahrstedt, the Supreme Court addressed a condominium owner's challenge to

the enforceability of a restriction contained in an original recorded declaration that

prohibited all animals except domestic fish and birds. (Nahrstedt, supra, 8 Cal.4th at pp.

368, 369, fn. 3, 370 ["we granted review to decide when a condominium owner can

prevent enforcement of a use restriction that the project's developer has included in the

recorded declaration of CC&Rs"].) Nahrstedt concluded that former Civil Code section

1354's presumption of reasonableness could be overcome only if the party challenging

the restriction could prove that the restriction: (1) "violates a fundamental public policy";

(2) "bears no rational relationship to the protection, preservation, operation or purpose of

the affected land"; or (3) "imposes burdens on the use of lands it affects that substantially

outweigh the restriction's benefits to the development's residents." (Nahrstedt, at

pp. 385-386.) Applying these standards, Nahrstedt held that the plaintiff's complaint

failed to allege any of the three grounds of unreasonableness: the recorded pet restriction

prohibiting cats or dogs but allowing other pets was "rationally related to health,

sanitation and noise concerns legitimately held by residents of a high-density

condominium project"; the plaintiff's allegations did not focus on the restriction's burdens

13 on the affected property, but centered on her own cats without reference to the effect on

the development as a whole; and the plaintiff's contention that the restriction violated her

right to privacy under the California Constitution failed because the constitution did not

implicitly guarantee condominium owners the right to keep cats or dogs as household

pets. (Id. at pp. 386-388.)

Here, Tempkin's assertion that the pet restriction is "unenforceable as a matter of

law" and his reference to Nahrstedt suggests he seeks to apply its unreasonableness

standard summarized above. But on appeal, he has not shown how he made, or attempted

to make, a showing below on any of the three grounds and he does not argue these

grounds in his appellate brief. The trial court did not make findings on any of these three

grounds. Presumably Tempkin relies on the Nahrstedt court's pronouncement, made

during its discussion of the benefits ensuing when courts apply a presumption of validity

to recorded CC&Rs, that "when an association determines that a unit owner has violated

a use restriction, the association must do so in good faith, not in an arbitrary or capricious

manner, and its enforcement procedures must be fair and applied uniformly." (Nahrstedt,

supra, 8 Cal.4th at p. 383, citing Ironwood Owners Assn. IX v. Solomon (1986) 178

Cal.App.3d 766, 772 & Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642,

650; see also Lamden, supra, 21 Cal.4th at p. 263.) Unless the facts are undisputed,

however, the question of whether the board has fairly and uniformly enforced a use

restriction is one that we review for substantial evidence. (See Rancho Santa Fe Assn. v.

Dolan-King (2004) 115 Cal.App.4th 28, 43.) Here, the issue is subject to substantial

14 evidence review because the court as the trier of fact resolved disputed facts, drew

inferences, and assessed the credibility of witnesses, including Tempkin.4

Under the principles set out in Nahrstedt, supra, 8 Cal.4th 361, Tempkin gives us

no basis to make a determination of the reasonableness of Villas' pet restriction as matter

of law. We accordingly reject Tempkin's argument.

III. Reasonableness of Villas' Enforcement Actions

In a separate argument, Tempkin reasserts his claim that the board acted

unreasonably in refusing him the right to apply for a variance, and repeats his claims

about the fairness of the board's actions. Specifically, Tempkin contends the board acted

unreasonably because it did not follow the variance provision in the CC&Rs. He

maintains the board "had no knowledge of the variance procedure and . . . failed to follow

its own precedent by allowing Tempkin to apply for a variance under the same conditions

as had been granted prior homeowners understanding it would be futile." According to

Tempkin, though he met all of the factors the board had previously considered in granting

4 For example, Tempkin testified that the board told him more than once at board meetings that it would be futile for him to apply for a variance; that the issue had been solved and voted upon. Tempkin testified that he had attended board meetings, including in November 2011, in which he "consistently ask[ed] the board for a certain request for a variance" but the board never sent him a writing that it had denied any of his requests for a variance. The record, however, contains a November 16, 2011 letter from the board to Tempkin in which it advised Tempkin that "the board decided unanimously to continue enforcing the one[-]dog policy as was the case with its predecessor board" and "[t]here will be no further variances given and the policy will continued to be enforced on a consistent and continuous basis." John McNeil, a board member from June 2009 to the time of trial and one-time board president, testified Tempkin had attended about ten board meetings and that McNeil considered Tempkin's request to keep his dogs as a variance request. McNeil denied telling Tempkin not to bother applying for a variance because the board would not grant it. 15 past variances and would have complied with the same conditions, the board did not

allow him a variance as it did for other homeowners. Tempkin asserts that any decision

by the board was therefore not made in good faith, and was unreasonable, arbitrary and

capricious. He claims he presented substantial evidence that the board has selectively

enforced the pet restriction.

It was Villas' trial burden to show it "followed its own standards and procedures

before [suing Tempkin to enforce its pet restriction]. It must demonstrate that its

procedures were fair and reasonable, its substantive decision was made in good faith and

was reasonable, and its action was not arbitrary or capricious." (Friars Village

Homeowners Assn. v. Hansing (2013) 220 Cal.App.4th 405, 413.) " 'The criteria for

testing the reasonableness of an exercise of such a power by an owners' association are

(1) whether the reason for withholding approval is rationally related to the protection,

preservation or proper operation of the property and the purposes of the Association as

set forth in its governing instruments and (2) whether the power was exercised in a fair

and nondiscriminatory manner.' " (Ironwood Owners Assn. IX v. Solomon, supra, 178

Cal.App.3d at p. 772.) "Generally, courts will uphold decisions made by the governing

board of an owners association so long as they represent good faith efforts to further the

purposes of the common interest development, are consistent with the development's

governing documents, and comply with public policy." (Nahrstedt, supra, 8 Cal.4th at

p. 374.) And, a community association's reasoned decisionmaking on ordinary matters, if

those decisions are in keeping with these rules, are entitled to deference. (Lamden, supra,

21 Cal.4th at pp. 253, 265, 270-271 [applying the rule of judicial deference where owners

16 "seek to litigate ordinary maintenance decisions entrusted to the discretion of their

associations' boards of directors"]; see Watts v. Oak Shores Community Association

(2015) 235 Cal.App.4th 466, 473 [judicial deference rule extends beyond mere

maintenance decisions and can extend to decision to deny owner's application for a room

addition].)

If the trial court resolves factual disputes to decide questions of good faith or

arbitrary enforcement, we review its decision for substantial evidence. In a substantial

evidence challenge to a judgment following a bench trial, " ' "the appellate court will

'consider all of the evidence in the light most favorable to the prevailing party, giving it

the benefit of every reasonable inference, and resolving conflicts in support of the

[findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by

the trial court's credibility determinations. [Citations.] Moreover, findings of fact are

liberally construed to support the judgment." ' " (Axis Surplus Ins. Co. v. Reinoso (2012)

208 Cal.App.4th 181, 189.) Where the essential facts are undisputed, "in reviewing the

propriety of the trial court's decision, we are confronted with questions of law.

[Citations.] Moreover, to the extent our review of the court's declaratory judgment

involves an interpretation of the [CC&Rs] provisions, that too is a question of law we

address de novo." (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965,

974.)5

5 Tempkin does not address what standard of review applies to the trial court's determination that the board did not enforce the pet restriction in an arbitrary or capricious manner, and did not treat Tempkin differently. Citing this court's decision in 17 Applying these standards compels us to affirm the judgment. Tempkin's first

contention—that Villas had no knowledge of the variance procedure—is unsupported by

the portion of the record cited by Tempkin. He cites to his own trial testimony that on

several occasions, a board member told him it would be futile to apply for a variance.

This testimony does not demonstrate that the board was generally ignorant of the CC&Rs'

procedures, much less the variance procedure. And, the record as a whole contains

substantial evidence contradicting Tempkin's assertion. In particular, board member

Sackheim testified that from 1999 to the present, she understood that a resident had the

right to apply for a variance to any CC&Rs provision and rule or regulation. Letters from

2005 and 2012 from a board representative indicate that variances were granted to at least

three homeowners in 2005 and 2008, contradicting any suggestion that the board was

unaware of the variance provision at the time it took steps to enforce the pet restriction

against Tempkin. To the extent there is arguably contrary evidence,6 on substantial

City of Oceanside v. McKenna (1989) 215 Cal.App.3d 1420, he asserts generally that the issue of "reasonableness" is a legal determination. But the reasonableness of a restriction in CC&Rs is a different question than the reasonableness of a community association board's enforcement actions against homeowners. City of Oceanside involved a city's motion for summary judgment concerning the reasonableness of a restriction in a publicly subsidized condominium project prohibiting an owner from renting or leasing his unit. (Id. at p. 1422.) In that context, and responding to the appellant's contention that summary judgment was error because the issue of reasonableness presented a triable issue of fact, this court held that the issue of reasonableness of the restriction in the CC&Rs "is not a factual one, but a legal one." (Id. at p. 1424.)

6 Tempkin points to deposition testimony read into the record at trial in which board president McNeil testified he was not aware of a variance section in the CC&Rs "as such." He also points to McNeil's deposition testimony that he understood the variance provision applied to architectural changes, not to the pet restriction. But at trial McNeil 18 evidence review, we disregard such evidence and accept as true the evidence favorable to

the judgment. (Estate of Teel (1944) 25 Cal.2d 520, 527; Howard v. Owens Corning

(1999) 72 Cal.App.4th 621, 631 [if substantial evidence is present, no matter how slight

in comparison with the contradictory evidence, the judgment must be upheld; as a general

rule the reviewing court will look only at the evidence and reasonable inferences

supporting the successful party and disregard the contrary showing].)

Tempkin argues he presented evidence showing the board selectively enforced the

pet restriction. According to Tempkin, evidence that the board did not enforce the rule

for many years, then granted a blanket variance in 2003, then gave other variances in

2005 but did not enforce the rule in 2006 and 2007, then remedied other violations

without court action, demonstrates selective enforcement. He maintains the evidence

shows he was never allowed to submit a written request as the homeowners had been in

2005. But the trial court found that the board evenhandedly enforced the pet restriction

since 2005, and that finding is supported by substantial evidence. McNeil testified the

board had enforced the pet restriction against several owners while he was on the board.

testified he did not deny Tempkin's request for a variance for the reason that he thought the provision did not apply to the pet restriction. McNeil also testified he understood a homeowner has the right to apply for a variance. Tempkin further points to trial testimony from former board president Jon Fagerstrom that Fagerstrom was not aware of a specific variance section in the CC&Rs, but worked with counsel or the management company on the issue. However, Fagerstrom also testified that when he granted the variances to homeowners in 2005, he familiarized himself with the CC&Rs at the time. Fagerstrom testified that in 2005, he was granting variances to the homeowners under the conditions mentioned above. Even assuming these particular board members were not familiar with the specific variance provision, that does not demonstrate other board members lacked such familiarity or the board as a whole did not act in accordance with the variance provision. 19 Villas presented evidence that in July 2009, August 2009, October 2009, November

2009, October 2010, June 2011, July 2011, December 2011, April 2012, May 2012, July

2012, September 2012, October 2012 and November 2012, the board sent violation

letters to homeowners who had been reported to have more than one dog within their

unit. Owners were invited to attend a board meeting to address the matter and present a

rationale for having two dogs. In some cases, the matter was resolved when the owner's

tenants left or a dog was removed. In other cases, the board levied fines that were paid

out of property sale escrows or it waived fines. McNeil testified that fines were used to

induce people to come into compliance; if the board received assurances of compliance, it

would waive fines pending execution of the homeowner's promise. In another case in

which the homeowner did not resolve the matter, the board advised her it could elect to

proceed with legal action. These are the same types of actions taken by the board

concerning Tempkin's violation.

The fact the board took no action to enforce the rule for many years before 2004 is

not an indication of selective or arbitrary enforcement in view of evidence that the board

investigated the community's opinion and reassessed its desire for the pet restriction in

2005 so as to decide whether Villas should retain the rule, and thereafter notified all

homeowners the rule would be strictly enforced from that point forward. In the face of

years of past uncorrected violations, the decision to strictly enforce the pet restriction was

a reasonable and informed decision of the board entitled to judicial deference. (Lamden,

supra, 21 Cal.4th at p. 263.) As for the lack of enforcement between 2006 and 2007, the

board presented evidence that Villas' rules and regulations advised owners that because

20 Villas did not have a full-time security force, it was only able to take enforcement action

when violations were brought to its attention. Tempkin has not presented evidence that

Villas was aware owners were in violation of the rule but declined to take any action.

Drawing all inferences favorable to the judgment, that evidence suggests Villas was not

aware of any need for enforcement actions during that time period. And, as stated, the

evidence shows that when the board learned of violations after 2005, it sent violation

letters, gave owners an opportunity to address the board, then eventually levied fines.

Tempkin argues the board "must permit [him] to apply for and receive a variance

in the same manner allowed to past homeowners" otherwise it "is enforcing the one[-]dog

rule in an arbitrary and capricious manner." In general, "[w]hether conduct was arbitrary

and capricious is a question of fact . . . ." (Zuehlsdorf v. Simi Valley Unified School Dist.

(2007) 148 Cal.App.4th 249, 255-256.) The trial court's factual finding that Tempkin

was given multiple opportunities to present his request for a variance, and did so, is

supported by the evidence of Tempkin's attendance at multiple board meetings and his

own testimony that he repeatedly asked for a variance. And there is no indication the

board showed any "manifest disregard" (Ironwood Owners Assn. IX v. Solomon, supra,

178 Cal.App.3d at p. 773) for its CC&Rs variance provision in dealing with Tempkin's

violation of the pet restriction. That provision states in part: "The board may authorize

variances from compliance with any of the architectural or use provisions of this restated

declaration as follows: [¶] . . . [¶] Variances shall be in writing and shall become

effective upon final approval by the board or an authorized committee." (Some

capitalization omitted.) The provision gives the board discretion as to whether to grant a

21 variance. And we read it not as requiring the board to obtain variance requests in writing,

but as requiring a variance granted by the board to be written. Nor does the rule require

the board to provide reasons for denial of variance requests. Tempkin compares his

situation to that in Ironwood, but in that case, unlike this one, there was no indication that

the proper entity, the governing board or the architectural control committee, ever met or

made decisions they had a duty to make pursuant to the CC&Rs. (Ironwood Owners

Assn. IX v. Solomon, at pp. 772-773.) Even assuming the facts concerning Tempkin's

requests to keep his dogs and the board's action are undisputed, there is no basis to

conclude the board acted arbitrarily or capriciously in treating Tempkin's requests to keep

his two dogs as a variance request, and to deny it on grounds he made no showing

warranting any action other than strict enforcement of the pet restriction.

IV. Appellate Attorney Fees

Villas asks us to award it attorney fees incurred on appeal under Civil Code

section 5975 (former Civ. Code, § 1354; see Tract 19051 Homeowners Ass'n v. Kemp

(2015) 60 Cal.4th 1135, 1138, fn. 1), which provides in part: "In an action to enforce the

governing documents, the prevailing party shall be awarded reasonable attorneys' fees

and costs." (Civ. Code, § 5975, subd. (c).) Villas argues it is additionally entitled to such

an award under an attorney fee provision in Villas' CC&Rs.7 We agree that generally,

7 That provision, paragraph 15.9, states: "In the event an attorney is engaged by the Board to enforce the Governing Documents, the Association shall be entitled to recover from the adverse party to the controversy its attorneys fees and costs so incurred. In the event litigation is commenced to enforce the Governing Documents, the prevailing party shall be entitled to its attorneys fees and costs. Said costs and attorneys fees shall 22 " '[s]tatutory authorization for the recovery of attorney fees incurred at trial necessarily

includes attorney fees incurred on appeal unless the statute specifically provides

otherwise.' " (Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 62; see Douglas

E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) Because

Civil Code section 5975 does not provide otherwise, we conclude Villas is entitled to an

award of appellate attorney fees and remand the matter to the trial court for a

determination of the appropriate amount of fees. (Kirby, at pp. 62-63.)

constitute a lien on the Lot which is enforceable pursuant to article 4 herein. This Section shall also apply to attorneys fees incurred to collect any post-judgment costs." 23

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court for a

determination of the amount of an award of attorney fees to The Villas In Whispering

Palms as the prevailing party on this appeal. Villas shall recover its costs on appeal.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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