Architectural Committee for Prestwick Estates v. Hunt
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 977(b). This opinion
has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
ARCHITECTURAL COMMITTEE FOR PRESTWICK ESTATES, UNIT NO. 1,
Plaintiff and Appellant,
GEORGE HUNT, Individually and as Trustee, etc.,
DARUSH MOYHI et al.,
Interveners and Appellants.
(Super. Ct. No. GIC814981)
O P I N I O N
Appeals from a judgment of the Superior Court of San Diego County,
Thomas Oliver LaVoy, Judge. Affirmed. Motion to dismiss. Denied.
Kennerson & Grant, Paul R. Kennerson and John K. Grant for Plaintiff
Law Offices of Anthony T. Ditty and Anthony T. Ditty for
Interveners and Appellants.
* * *
Petition to Remove Sitting Committee and Elect New Committee; Lawsuit Against
George Hunt; Sitting Committee’s Contemporaneous Resolution Regarding Removal
and Election of Committee Members; Complaint in Intervention
Beginning in mid-July 2003, a petition was circulated among property
owners seeking to remove and replace the members of the then sitting committee,
which committee was led by Raymond Beuligmann (the Beuligmann committee). The
petition was entitled “Vote to Remove Currently Appointed Members and Elect New
Members of the Architectural Committee of Prestwick Estates, Unit No. 1 Pursuant to
Paragraph (2) of the CC& Rs.”
The petition stated in relevant part, “WHEREAS, Paragraph 2 of the
CC& Rs provides that each of said persons appointed to the Architectural Committee
of Prestwick Estates, Unit No. 1 shall be subject to removal at the direction of the
owners of a majority in number of the lots in said subdivision, at any time; and [¶]
WHEREAS, Paragraph 2 of the CC& Rs provides said majority of the subdivision lot
owners shall, within a sixty (60) day period thereafter, elect a person or persons to fill
said vacancy; we hereby [¶] VOTE TO REMOVE from the Architectural Committee of
Prestwick Estates Unit No. 1 the currently appointed members of the committee,
Raymond F. Beuligmann, Ernest Wenkert, Michael Geni[n] and David Sachs; and
WE HEREBY VOTE TO ELECT to the Architectural Committee of Prestwick Estates
Unit No. 1 George Hunt . . . Dr. D Mohyi . . . Marcia C. Kagnoff .
. . Sreen Raghavan . . . and Jeffrey Essakow . . . .
IN WITNESS WHEREOF, the undersigned have executed this instrument and by
execution hereof do hereby remove from the Architectural
Committee of Prestwick Estates Unit No. 1
Michael Geni[n], and
and elect to the Architectural Committee of Prestwick Estates
Unit No. 1,
Dr. D. Mohyi,
Sreen Raghavan and
(We refer to the individuals named in the petition as the newly elected members of
the architectural committee as the Hunt committee.)
Later in July 2003, the Beuligmann committee filed
a lawsuit against property owner George Hunt seeking (1) a
declaration the Beuligmann committee could enjoin
unapproved construction on Hunt’s property, and (2) a
preliminary and permanent injunction enjoining Hunt from
further violations of the declaration relating to unauthorized
Before a majority of property owners signed the petition, on August
22, 2003, the Beuligmann committee passed a resolution purporting to interpret
amended paragraph 2 of the declaration...
On June 17, 2005, final judgment on the complaint in intervention was entered.
That judgment stated in part, “[o]n December 28, 2004, the court issued its
interlocutory judgment on the complaint in intervention, pending the outcome of the
election. On April 8, 2005, the court issued its ruling on the certification of the
election. [¶] NOW, THEREFORE, THE COURT HAVING CONSIDERED THE ISSUES
THAT WERE PRESENTED TO IT FOR DECISION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED THAT:
1. The first cause of action for mandatory injunction is denied.
2. The second cause of action is granted, and the Architectural Committee
composed of Raymond Beuligmann, Ernest Wenkert, David Sachs, and
Michael Genin is hereby ordered to cease and desist all activities undertaken in the
name of the Architectural Committee for Prestwick Estates and are precluded from
purporting to act or to act in the name of the Architectural Committee for Prestwick
Estates Unit No. 1.
3. The third cause of action for declaratory relief is granted in part and denied in
part. . . .
4. Having supervised the election, having entertained the objections by respondent,
Architectural Committee for Prestwick Estates, Unit No. 1 to the election results, and
having issued in ruling on April 8, 2005 certifying Yamada as the only candidate to
receive 45 votes, the court’s supervised election results are hereby confirmed.”...
Motion to Dismiss
The Hunt committee moves to dismiss the Beuligmann committee’s
appeal on the grounds the Beuligmann committee: (1) appealed from the December
judgment which was not a final judgment and not appealable; (2) never appealed
from the final judgment; (3) did not timely file its second notice of appeal with regard
to the trial court’s April 8, 2005 order certifying the election results; (4) should be
precluded from proceeding with this appeal “because it enjoyed the benefits of the
underlying judgment” in the form of participating in the court‑ ordered election of new
We agree the December judgment on the complaint in intervention was
not a final judgment and not directly appealable. This court, however, has discretion
to construe a prematurely filed notice of appeal as an appeal from the subsequently
entered final judgment. (Cal. Rules of Court, rule 8.104(e); In re Marriage of
Battenburg (1994) 28 Cal.App.4th 1338, 1341, fn. 1.)
Here, the Beuligmann committee filed a notice of appeal in March 2005,
purporting to appeal from the trial court’s rulings set forth in the statement of decision
and in the December judgment, and filed a notice of appeal from the April 8, 2005
order, neither of which was made final until entry of final judgment in June 2005. We
exercise our discretion and construe the Beuligmann committee’s notice of appeal as
an appeal from the final judgment in this case. We do not regard the Beuligmann
committee’s participation in the court-ordered election procedures while its appeal
was pending, as a waiver of its right to appeal the trial court’s order to hold an
election in the first place. Had the election turned out results favorable to the
Beuligmann committee, the issues raised on appeal might have become moot.
The motion to dismiss is denied...
Standards of Review and General Contract Principles
No party objected to the trial court’s statement of decision. “We
therefore are required to presume the trial court made all findings necessary to
support the judgment.” (Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942; see
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 [under the doctrine
of implied findings, we must infer the trial court made findings necessary to uphold
In the appeal and cross‑ appeal, the parties argue the trial court
misinterpreted the declaration and, in particular, paragraph 2. We therefore apply
basic rules of contract interpretation in our review of the trial court’s interpretation of
the declaration. (Founding Members of the Newport Beach County Club v. Newport
Beach County Club, Inc. (2003) 109 Cal.App.4th 944, 955 (Founding Members); see
Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 380-381 [“[l]
ike any promise given in exchange for consideration, an agreement to refrain from a
particular use of land is subject to contract principles, under which courts try ‘to
effectuate the legitimate desires of the covenanting parties.’ [Citation.] When
landowners express the intention to limit land use, ‘that intention should be carried
out’”]; Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444-445 [“Restrictions on
the use of land will not be read into a restrictive covenant by implication, but if the
parties have expressed their intention to limit the use, that intention should be carried
out, for the primary object in construing restrictive covenants, as in construing all
contracts, should be to effectuate the legitimate desires of the covenanting parties”].)
The basic goal of contract interpretation is to give effect to the parties’
mutual intent at the time they entered a contract. (Founding Members, supra, 109
Cal.App.4th at p. 955.) “When a contract is reduced to writing, the parties’ intention
is determined from the writing alone, if possible. [Citation.] ‘The words of a contract
are to be understood in their ordinary and popular sense.’ [Citations.] [¶] Extrinsic
evidence is admissible to prove a meaning to which the contract is reasonably
susceptible. [Citations.] 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 in interpreting the contract. [Citations.] Thus,
‘[t]he test of admissibility of extrinsic evidence to explain the meaning of a written
instrument is not whether it appears to the court to be plain and unambiguous on its
face, but whether the offered evidence is relevant to prove a meaning to which the
language of the instrument is reasonably susceptible.’” (Ibid.)
“The ultimate construction placed on the contract might call for different
standards of review. When no extrinsic evidence is introduced, or when the
competent extrinsic evidence is not in conflict, the appellate court independently
construes the contract. [Citations.] When the competent extrinsic evidence is in
conflict, and thus requires resolution of credibility issues, any reasonable
construction will be upheld if it is supported by substantial evidence.” (Founding
Members, supra, 109 Cal.App.4th at pp. 955‑ 956.)
Constitutional due process rights provide
protection against only government action. “[N]othing in the
language of the Due Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion by private actors. The Clause is
phrased as a limitation on the State’s power to act, not as a guarantee of certain
minimal levels of safety and security. It forbids the State itself to deprive individuals
of life, liberty, or property without ‘due process of law,’ but its language cannot fairly
be extended to impose an affirmative obligation on the State to ensure that those
interests do not come to harm through other means. . . . Like its counterpart in the
Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was
intended to prevent government ‘from abusing [its] power, or employing it as an
instrument of oppression,’ [citations]. Its purpose was to protect the people from the
State, not to ensure that the State protected them from each other. The Framers
were content to leave the extent of governmental obligation in the latter area to the
democratic political processes.” (DeShaney v. Winnebago Cty. Soc. Servs. Dept.
(1989) 489 U.S. 189, 195‑ 196.)
Therefore, the Beuligmann committee’s due process argument is simply
The additional argument that the removal should be set aside because signatures
were gathered secretly is also meritless. As discussed ante, paragraph 2 only
requires a majority to direct the removal of a committee member to effect such a
removal. Paragraph 2 does not require any particular procedures or that notice be
given to all property owners, and certainly does not require an individual property
owner who seeks the removal of a committee member to contact all property owners
before gathering support for such action. Beuligmann testified that no meeting was
held before homeowners were asked to sign the assessment petition and that
Beuligmann, in soliciting homeowners’ signatures in support of the assessment, only
approached homeowners Beuligmann knew to be supportive of the declaration. One
of the drafters of the petition at issue in this case testified he had used the
assessment petition as a model for the petition to remove and replace the
The Hunt Committee’s Issues on Cross-appeal
The Hunt committee argues in its cross‑ appeal that the trial court (1)
omitted issues in the statement of decision; (2) erroneously found paragraph 2 of the
declaration was ambiguous with regard to the election of new members and the
resolution was a proper exercise of interpretive power given to the architectural
committee under paragraph 30 of the declaration; (3) failed to find the petition’s
election of the Hunt committee effective, particularly in light of the similarities between
the petition and the circumstances surrounding the adoption of the sixth amendment;
and (4) erroneously concluded the petition’s attempt to effect an election offended
principles of due process. As discussed in detail post, we reject each of the Hunt
The Hunt committee argues the trial court erred by omitting issues in the
statement of decision. The opening brief on cross-appeal states, “[i]t should also be
noted that [the Hunt Committee’s] request for Statement of Decision specifically
asked the court to set forth the factual and legal basis for its ruling on the question of
ambiguity, and why the holding of the Crestview[ Cemetery Assn. v. Dieden (1960) 54
Cal.2d 744] case was not binding on the court. . . . Because the trial court did not
address these issues in the Statement of Decision, the finding on the question of
ambiguity cannot be supported on any ‘implied findings.’”
The Hunt committee also argues the trial court erred by failing to make
specific findings in the statement of decision which responded to the Hunt committee’
s arguments that the resolution constitutes an invalid amendment to the declaration.
The opening brief on cross‑ appeal states, “[w]hen these arguments were made to
the trial court . . .[,] they were rejected. When the court was asked to make specific
findings on them [in the request for a statement of decision], it failed to do so. . . .
[The Hunt committee] contend[s] this was error.”
The record, however, does not show the Hunt committee filed or served
any objections to the statement of decision. Therefore, these arguments are waived.
(Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140-141 [under Code of Civil
Procedure section 634, a party must raise any objection to the statement of decision
“in order to avoid an implied finding on appeal in favor of the prevailing party”]; see
Code Civ. Proc., § 634.)
The Hunt committee argues the trial court erred by finding that “the
language of paragraph 2 of the Declaration of Restrictions (the Sixth Amendment) is
ambiguous and incomplete as to the procedures to be employed for an election of
members of the Architectural Committee.” As discussed ante, unlike a removal of
committee members, an election to fill vacancies on a committee implicates a
process. Paragraph 2 does not provide any details on how that process would occur
within 60 days of a majority agreement to direct the removal of committee members.
The resolution does not establish election procedures in any way inconsistent with
those in paragraph 2 and does not constitute an amendment to paragraph 2 of the
The resolution requires the committee to schedule an election no
sooner than 30 days, but no later than 60 days, after a petition is presented
requesting such an election, and the election “be held in such a manner as to ensure
fairness and due process for all Committee members, candidates and homeowners.”
In addition to the interpretative powers given the committee at paragraph 29 of the
declaration, paragraphs 27 and 35 specifically refer to the committee’s responsibility
to enforce the conditions and restrictions of the declaration as well. It is a logical
extension of such provisions that the architectural committee be vested with the
responsibility of conducting an election to fill committee member vacancies in
accordance with the terms of paragraph 2.
The Hunt committee argues the petition should have been construed to
effect not only a removal but also the election of the Hunt committee under paragraph
2 of the declaration in light of the evidence that the petition “was the same process
which was followed in the adoption of the 1970 amendment [the sixth amendment].”
The recitals portion of the sixth amendment states a meeting of property owners was
held to address whether paragraph 2 of the declaration should be revised in order to
empower the owners to remove Prestwick Estates, Inc.’s pro‑ tract‑ housing
representatives on the committee and replace them with certain property owners. A
majority of the owners decided that paragraph 2 of the declaration should be revised
to vest in the property owners the power to remove and elect committee members.
The sixth amendment effectively removed Prestwick Estates, Inc.’s representatives
and elected new members to the committee in one step.
But, as discussed ante, moving forward, the majority of owners adopted
a two-step process of removal and election. The context of the adoption of the sixth
amendment was different than the removal and election of committee members at
The judgment is affirmed. In the interests of justice, because each party
prevailed in part of this case, the parties shall bear their own costs on appeal and
SILLS, P. J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line Lawyers.
|San Diego Education Report
Marcia Kagnoff, Jeffrey Essakow, Daniel Shinoff
A related case was filed four
months after the decision at left
was filed in 2007.
04/01/09 08:45AM C-68 CV
Hayes, Judith F.
Ex Parte 37-2007-00065902-CL-BC-CTL
Daniel R. Shinoff
ANTHONY T DITTY VS. GEORGE HUNT
Case Type: Civil
Date Filed: 05/01/2007
Breach of Contract/Warranty
DITTY ANTHONY T
[lawyer, "intervener" in case at left]
KAGNOFF MARCIA C
[It looks like either or both
George Hunt and Proptech, Inc.
felt that Marcia Kagnoff was
particularly responsible for
problems, so they countersued
her. But that shouldn't be a
problem for Marcia, since her pal
Shinoff is the attorney for the
plaintiffs--and Shinoff owes her a
favor (see next article).]
Forget teens. Malls want to be
hangouts for adults
By Eric Wolff
NOV. 24, 2012
...The new Whole Foods
coming to the Flower Hill
Promenade in Del Mar will be
the first in the county with the
grocery chain’s new restaurant
concept. The restaurant along
with Pannikin’s will be key to
energizing the whole property.
“Retail is a meeting place
today,” said Geoffery Essakow,
co-owner and developer of
Flower Hill. “I want people to
feel cool about coming to hang
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BY DANIEL R. SHINOFF. As my
two years serving as President of
the Board ..... Clive and
Rosemary Essakow. Jeffrey
and Jill Essakow. Edward and
Marcia Kagnoff and Jeffrey Essakow didn't like the way the
case below turned out, so they got their pal Daniel Shinoff to
file an new case--in what they obviously expected to be a
The new case (see right column) was heard by none other
than Judge Judith Hayes.
Case Title: JEFFREY ESSAKOW VS. MICHAEL LONG
Case Number: 37-2007-00075899-CU-BC-CTL Case Location: San
Case Type: Civil Date Filed: 09/28/2007
Category: CU-BCW Breach of Contract/Warranty
Last Name or Business Name First Name Primary (P)
ESSAKOW JEFFREY P
Last Name or Business Name First Name Primary (P)
LONG MICHAEL P
Marcia Kagnoff and
Marcia Kagnoff illegally
turned over Kaiser Medical
records to her friend Dan
Shinoff in 2003. I don't know
what Mr. Shinoff was hoping
to find in my medical
records, but he didn't find it.
The records did him no
good at all.
When Maura Larkins asked her
why she had done it, she said,
"We have to do what the
lawyers tell us."
Apparently she meant, "I
always do what family friend
Dan Shinoff wants."
2 Named to Occupy New
Judgeships on Superior
July 07, 1989
Gov. George Deukmejian on
Thursday appointed San
Diego Municipal Judge Dick
Murphy and Thomas O.
LaVoy, a partner in the law
firm of Wingert, Grebin,
Anello & LaVoy, to fill newly
created positions on the
county's Superior Court
LaVoy, 45, was a special
attorney with the U.S.
Department of Justice in
Newark, N.J., for three years
before joining the San Diego
law firm in 1975.
"... On Friday the 13th, he was
assigned Judge Thomas O.
LaVoy. In all the delay..."
Steve Peace Isn't Happy
By Don Bauder
May 19, 2005
San Diego — 'From what I
have been through, I call
this city 'The Banana
Republic of San Diego.' It
appears that we have a
system of government not
built on laws, but on
relationships. That is the
way banana republics work."
Speaking is Stanley Zubel,
lawyer for Harvey Furgatch,
former port commissioner. In
1998, those who wanted the
city to subsidize the Padres'
ballpark had a problem:
there was a $21 million hole
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been filled. Three weeks
before the election, on
October 20, 1998, then-port
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Malcolm, beaming next to
then-Mayor Susan Golding,
announced that the port
would close that $21 million
gap. Ever since, Furgatch
and Zubel have been going
through the courts, pointing
out that the port was
inflating assets with the flick
of a pencil to make an illegal
gift so the ballpark project
could go ahead.
Twice the appeals court has
judges for dismissing the
Furgatch suits. An impatient
appellate court has even
lectured San Diego superior-
court on correct legal
procedures in such cases.
Up until late last week, the
cases just sat. Superior
court wouldn't name a judge
and would't tell Zubel why.
"There is something
fomenting under the surface
in San Diego," says Zubel.
"It's this question: are
superior court judges
treating these ballpark
cases fairly and according
to the requirements of the
Morse v. Morse
Robert Morse's lawyer,
Monty McIntyre, told a San
Diego jury ... The trial before
Superior Court Judge Thomas
LaVoy in downtown San Diego
Prosecutor tapped for court
vacancy | The San Diego
2005 – Before that she worked
as a deputy district attorney in
San Diego in 1986. ...
Birkmeyer will fill the vacancy
left by Judge Thomas O.
LaVoy, who ...
Sec. 998 Offer Including
'Reasonable' Attorney Fees
9, 2004 – McIntyre said San
Diego Superior Court Judge
Thomas O. LaVoy was right to
reject the contention of Elite
Show Services, Inc. that the offer ...
honor roll of donors - Giving -
UC San Diego
Chancellor. University of
California, San Diego ... Jennifer
L. and Michael S. Kagnoff.