Bren vs. Emerald Bay Community Association

In their opposition, Plaintiffs state that they now agree to an inspection of their property notwithstanding their privacy concerns and other objections, and offer alternative dates for the inspection. However, Defendant states that there has been no agreement between the parties as to who can attend, how long, or the scope of the inspection. The court notes that Plaintiffs object to the inspection of interior rooms, claiming privacy concerns and argue that those rooms are irrelevant to this action. However, as Plaintiffs have put at issue the value of their property, an inspection of the entire property is properly within the scope of discovery.

As the parties have not agreed on the scope of the inspection and its participants, the court grants Defendants’ Motion to Compel Inspection of Plaintiffs’ Property. IT IS ORDERED THAT on a mutually agreeable date within twenty (20) days of this ruling, Plaintiffs shall allow Defendant’s counsel (including any co-counsel) and Defendant’s expert to inspect Plaintiffs’ entire property for up to four hours.

However, the court denies Defendant’s request for monetary sanctions against Plaintiffs and their counsel. The court finds that in light of Plaintiffs’ privacy concerns and concerns regarding the scope of the requested inspection, Plaintiffs “acted with substantial justification” in opposing this Motion. (CCP § 2031.320(b).)

Defendant is ordered to give notice of this ruling to Plaintiffs.

II. Motion for Summary Adjudication

Defendant Emerald Bay Community Association’s (“Defendant”) Motion for Summary Adjudication is GRANTED as to the Second Cause of Action for Nuisance and Third Cause of Action for Breach of Governing Documents.

The court OVERRULES Defendant’s objections to the Declaration of Cary Bren.

The court SUSTAINS Defendant’s objections to the Declaration of Michael Brunson, as his expert opinion lacks foundation, is speculative, and is admittedly based on an incomplete investigation. (Brunson Dec. ¶ 10 [“[I]t is my opinion that the alleged conditions are of a type that may be recognized by market participants and may result in a measurable impact on the market value of the Subject Property.”] [emphasis added]; id. ¶ 11 [opining that “the alleged conditions may have had, and may continue to have, an adverse effect on the market value of the Subject Property”] [emphasis added].) “[A]n expert's opinion based on assumptions of fact without evidentiary support . . . or on speculative or conjectural factors . . . has no evidentiary value. . . and may be excluded from evidence.” (People v.

Yates (2018) 25 Cal. App. 5th 474, 487; Howard Ent., Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102, 1115; see also People v. Fortin (2017) 12 Cal. App. 5th 524, 531 [“The trial court has broad discretion to determine whether proposed expert testimony lacks the necessary foundation to be reliable, relevant and admissible.”].)

Furthermore, even if the court had overruled the objections and admitted Brunson’s declaration, the court’s ruling would still be the same as the declaration only establishes a diminution in the value of the property, not the substantial interference with its use or enjoyment which is necessary to sustain a cause of action for nuisance. (See Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534 (1999) (“A diminution in value does not interfere with the present use of property and cannot alone constitute a nuisance”); Koll-Irvine Center Property Owners Ass'n v. County of Orange (1994) 24 Cal.App.4th 1036 (explaining that diminution in property value is an element of damages, not the interference with a property right necessary to constitute a nuisance)).

The court declines to rule on Defendant’s objections to the statements made in Plaintiffs’ Undisputed Material Facts as those are not objections to evidence.

In this action, Plaintiffs allege that “[i]n or about 2019 to early 2021, [Defendant] as part of a public project to extend a sewer line, regraded and performed other work to the rear slope to a condition that is materially different and much steeper than the prior natural grade of the slope.” (Compl. ¶ 10.) “[T]he slope was regraded to include a bench area that is inconsistent with the natural grade, may degrade the stability of the slope, and provides a viewing area into Plaintiffs’ rear yard.” (Id.)

Plaintiffs also allege that Defendant “recently planted vegetation along the slope that is inconsistent with existing plantings and detracts from the natural beauty of the area.” (Id.) Plaintiffs assert that “[a]s a direct and proximate result of this improper regrading of the slope and other issues identified above, there is an increased risk of harm to property or persons, it will be more difficult for Plaintiffs to access the beach area as the natural slope has been materially modified and the bench area at the top of the slope impacts both access and Plaintiffs’ privacy.” (Compl. ¶ 11.)

Plaintiffs also allege that Defendant “did not properly engineer or plan the sewer extension and regrading work, and did not obtain the proper approvals, including the appropriate approvals and permits from the California Coastal Commission.” (Compl. ¶ 17.) Defendant refers to the subject slope area as “Lot H.” (Mot. at p. 3.)

As a threshold matter, the court will not take into consideration Plaintiffs’ new factual allegations, evidence and arguments regarding the steeper step from Plaintiffs’ property to the beach, or any drainage and lighting issues asserted by Plaintiffs in opposition to this Motion, as these issues are not pled in the Complaint. “The pleadings delimit the issues to be considered on a motion for summary judgment.” (Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242, 1253.) “[T]he plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Id.) “To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings.” (Id.) “If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.” (Id.) “[A] moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Agustin v.

Golden Empire Transit Dist. (2025) 116 Cal. App. 5th 426, 442.) “[N]ew factual issues presented in opposition to a motion for summary judgment should [only] be considered if the controlling pleading, construed broadly, encompasses them.” (Id. at 443.) “In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Id.) Here, even construing the Complaint broadly, the steep step, drainage and lighting issues are not simply new theories; they are a completely new factual bases for liability that were not pled in the Complaint.

Second Cause of Action for Nuisance

Defendant seeks summary adjudication of the Second Cause of Action for Nuisance on the grounds that Plaintiffs purportedly do not possess, and cannot reasonably obtain, the needed evidence to establish that they suffered an unreasonable and substantial interference with their use and enjoyment of their home.

Along with the allegations stated above, Plaintiffs’ Second Cause of Action for Nuisance alleges: “The Association and Service District have a duty to refrain from actions that will unreasonably interfere with the Plaintiffs’ comfortable use and enjoyment of the Property.” (Compl. ¶ 22.) Plaintiffs further allege that Defendant’s “actions with respect to the sewer line work, regrading of the slope, creation of the bench area, etc., are directly and proximately interfering with and obstructing the Plaintiffs’ comfortable use and enjoyment of the Property, which constitutes a nuisance pursuant to Civil Code section 3479 et seq.” (Id. ¶ 23.)

The relevant facts and evidence to the Nuisance claim are as follows: Slope/Lot H/Bench Area Pathway • At the time Plaintiffs purchased their property, Plaintiff Cary Bren was aware that one of the purposes of the slope included walkway access. (Def.’s Evid., Ex. 6 at p. 19:10-18.)

• The pathway created by Defendant “is open to all 2,000 people that live within Emerald Bay[.]” (Krolikowski Dec. ¶ 7, Ex. E [October 26, 2022 Deposition of Toni Hughes, 127:1-22].) • Plaintiff Cary Bren testified to a “[l]ack of privacy with the bench path that has been created at the top of the slope[.]” (Krolikowsi Dec., Ex. D at pp. 26:7-15.) • Plaintiff Cary Bren also claims that “increased access to [Plaintiffs’] home provided by the use of the pathway by anyone in the EBCA and theirs guests, has caused and continues to cause a great deal of fear, anxiety, and stress for myself, my wife, and my children.” (Bren Dec. ¶ 9 [emphasis in original].)

Bren claims that “anyone that uses the pathway created by the EBCA can now view into my rear [yard], my home and certain private spaces.” (Id.) • Plaintiff Cary Bren claims that he “observed Mr. Rebeil walking along the pathway while using his phone to take videos and/or photographs of [Plaintiffs’] property, including [Plaintiffs’] backyard and into the private areas of [Plaintiffs’] home.” (Bren Dec. ¶ 6.) One time, Bren “personally witnessed Mr. Rebeil stop behind [the] property, crouch down to obtain a better view, and extend his arm through my back fence for the apparent purpose of capturing audio and/or visual recordings and photographs of [Plaintiffs’] rear yard and other private areas.” (Id. ¶ 7.) • The photographs of Plaintiffs’ home from the beach and the pathway created by Defendant show the same features of Plaintiffs’ home, just at different angles. (Defs.’ Evid., Ex. 17 [Exhibits 35 and 36 to the transcript].) • Plaintiff Cary Bren admits that the beach where he lives (the south end) is “one of the most visible areas in Emerald Bay, and used by many owners and their guests.” (Def.’s Evid., Ex. 7 at pp. 146:21-25, 147:1-3; id. [Ex. 20 to the transcript].) • Plaintiff Cary Bren states that from the beach, a person looking at Plaintiffs’ property could see “the landscaping, you would see the slope and the wall here, you would see the lights and the exterior here in the loge, arches, glass at the back doors, doors and glass at the bedroom level, master bedroom, master bath, stairs, stairs behind the garage.” (Defs.’ Evid., Ex. 17 at p. 204:6-11.)

• Plaintiff Cary Bren stated during deposition that he is not aware of any cracked building material on his structure caused by any slope movement. (Def.’s Evid., Ex. 15 at 63:11-17.) Sewer Line/Manhole • Plaintiff Cary Bren claims that the sewer line and manhole placed behind his property has caused a diminution in value to his property. (Def.’s Evid., Ex. 12 at p. 195:1-14; Krolikowski Dec., Ex. D at pp. 122:23-25].) • Plaintiff Cary Bren admits that there are no odors coming from the sewer lateral connection. (Def.’s Evid., Ex. 14 at p. 63:4-7.)

Ice Plants • Plaintiff Cary Bren stated that “the slope has ice plants that start at the bottom that now has taken over quite a bit of the slope, and it’s highly invasive, and, I think, a risk to the stabilization of the slope,” but also stated that he is not aware of the ice plant damaging his property and has no knowledge of the ice plants causing stability problems with the slope. (Def.’s Evid., Ex. 21 at pp. 27:1-4; id., Ex. 22 at pp. 62:7-9, 192:1-9.) Damages • Plaintiff Cary Bren states: “As an owner of the Subject Property, and based upon my review of market data and sales, the loss of use and/or diminution in value to the Subject is likely in the hundreds of thousands of dollars, if not more.” (Bren Dec. ¶ 14.) “Further, to the extent I have to undertake efforts to reconstruct a new rear step or steps, install more landscaping or other privacy protection measures and address any water and erosion issues caused by other draining into the slope, those costs will likely be in the tens of thousands of dollars, if not more.” (Id.)

The court finds that the evidence fails to raise a triable issue of fact to demonstrate that any of Defendant’s alleged conduct in the Complaint constitutes a nuisance.

“Anything which is injurious to health . . . or is . . . an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Cal. Civ. Code § 3479.)

However, “every annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance.” (Schild v. Rubin (1991) 232 Cal. App. 3d 755, 764.) “The question is not whether the plaintiffs have been annoyed or disturbed ... but whether there has been an injury to their legal rights.” (Id.) “People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others.” (Id.)

In evaluating a nuisance claim, courts should take into consideration the following: Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together.

The very existence of organized society depends upon the principle of “give and take, live and let live,” and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation. (Wilson, 21 Cal. App. 5th at 803.)

“[T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal. App. 4th 263, 302.) First, a nuisance claim requires “proof that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’” (Id. at 303.) This includes “’harm of importance’ and a ‘real and appreciable invasion of the plaintiff's interests' . . . and an invasion that is ‘definitely offensive, seriously annoying or intolerable[.]’” (Id.) “The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? ... ‘If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular plaintiff may make it unendurable to him.’” (Id.) (emphasis added)

Second, a nuisance claim requires proof that the interference be unreasonable, “i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’” (Monks, 167 Cal. App. 4th at 303.) “The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant's conduct.” (Id.) “[T]he standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’” (Id.) “[A]n expert opinion couched in terms of [what] ‘should’ [happen] is not sufficiently ‘emphatic’ to be given any weight.” (Id. at 307.)

Unreasonableness “is a question of fact: ‘Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case.’” (Wilson v. S. California Edison Co. (2018) 21 Cal. App. 5th 786, 803.)

“[T]he essence of a private nuisance is its interference with the use and enjoyment of land.” ((Oliver v. AT&T Wireless Servs. (1999) 76 Cal. App. 4th 521, 534 [affirming order granting defendant’s motion for summary adjudication of a nuisance claim regarding a neighboring cell tower that did not infringe on plaintiff’s enjoyment or use of plaintiff’s property].) “The activity in issue must ‘disturb or prevent the comfortable enjoyment of property’ . . . such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, or the noise and vibration of machinery.” (Id.) “When an alleged nuisance “cannot be seen from anywhere inside their house, except from a single window,” it is not a nuisance because it “has not disrupted [the plaintiffs’] use of their property.” (Id.)

Further, “the displeasing appearance of an otherwise lawful structure on one side of a boundary cannot be deemed to substantially interfere with the enjoyment of that which is on the other side of the boundary without significantly diminishing the rights associated with both sides of the boundary.” (Id. at 535.)

When there is no physical invasion of a plaintiff’s property, the courts have deemed “fear of a catastrophic accident” that causes “diminution of the value and usefulness of [plaintiff’s] property and [] mental anguish,” insufficient to claim nuisance. (Koll-Irvine Ctr. Prop. Owners Assn. v. Cnty. of Orange (1994) 24 Cal. App. 4th 1036, 1041.) “[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury.” (Id. at 1041-1042.) There must be evidence of “an actual physical invasion or damage to [plaintiffs] or their properties.” (Id. at 1042.) “[S]uch things as fear, anxiety, and emotional distress which are not caused by an interference with a specific private property right and which are common to the general population will not support a private action for nuisance.” (Id.)

First, the evidence of nuisance based on the change in the slope and the planting of ice plants is based solely on the fear of a future injury, which is insufficient to establish a nuisance. Plaintiffs rely solely on Plaintiff Cary Bren’s speculative lay opinion. Evidence of “uncertainty with respect to the stability” of the subject land is insufficient, rather there must be evidence of a “reasonable probability of significant harm[.]” (Monks, 167 Cal. App. 4th at 306.)

Second, Plaintiffs claim of nuisance based on an invasion of privacy fails to raise a triable issue of fact as there is no evidence of substantial and unreasonable interference with Plaintiffs’ use and enjoyment of their property. The only evidence in support of this theory is Plaintiff Cary Bren’s claim that “increased access to [Plaintiffs’] home provided by the use of the pathway by anyone in the EBCA and theirs guests, has caused and continues to cause a great deal of fear, anxiety, and stress for myself, my wife, and my children.” (Bren Dec. ¶ 9 [emphasis in original].)

However, the evidence demonstrates that such interference is not substantial or unreasonable: • At the time Plaintiffs purchased their property, Plaintiff Cary Bren was aware that one of the purposes of the slope included walkway access. (Def.’s Evid., Ex. 6 at p. 19:10-18.) • The photographs of Plaintiffs’ home from the beach and the pathway created by Defendant show the same features of Plaintiffs’ home, just at different angles. (Defs.’ Evid., Ex. 17 [Exhibits 35 and 36 to the transcript].) • Plaintiff Cary Bren admits that the beach where he lives (the south end) is “one of the most visible areas in Emerald Bay, and used by many owners and their guests.” (Def.’s Evid., Ex. 7 at pp. 146:21-25, 147:1-3; id. [Ex. 20 to the transcript].) • Plaintiff Cary Bren states that from the beach, a person looking at Plaintiffs’ property could see “the landscaping, you would see the slope and the wall here, you would see the lights and the exterior here in the loge, arches, glass at the back doors, doors and glass at the bedroom level, master bedroom, master bath, stairs, stairs behind the garage.” (Defs.’ Evid., Ex. 17 at p. 204:6-11.) • The photographs attached at Exhibit A of Plaintiff Cary Bren’s declaration show that the direct eyeline at the pathway only looks into a sealed off, uninhabited area of Plaintiffs’ property and is otherwise the same perspective as a person standing from the beach. (Bren Dec., Ex.

A.)

Based on the foregoing, Plaintiffs knew that that there could be a walkway constructed behind their property on the slope, and their home is already exposed to the public eye and to an even greater degree not only to the residents and guests of Emerald Bay, but to any person who visits the beach behind Plaintiffs’ property. Thus, the alleged interference is neither substantial nor unreasonable. Accordingly, the construction of the pathway cannot, as a matter of law, constitute a nuisance.

Third, Plaintiffs’ claim of nuisance based on the existence of the manhole behind Plaintiffs’ property and alleged diminution of value of Plaintiffs’ property is also without merit. The only complaint as to the manhole is that it is unsightly, is insufficient to qualify as a nuisance. “[T]he displeasing appearance of an otherwise lawful structure” cannot constitute a nuisance, and “[a] diminution in value does not interfere with the present use of property and cannot alone constitute a nuisance.” (See Oliver, 76 Cal.App. 4th 525, 534.)

Based on the foregoing, Plaintiffs have not raised a triable issue of fact as to a cognizable nuisance. The court grants Defendant’s Motion for Summary Adjudication of the Second Cause of Action.

Third Cause of Action for Breach of Governing Documents

Plaintiffs’ Third Cause of Action for Breach of Governing Documents alleges that Defendant’s “Governing Documents, collectively, require the Association to maintain and operate various portions of the Emerald Bay community (including any common areas) in an appropriate manner and condition, to not create a nuisance that results in an interference with the comfortable use and enjoyment of its member’s property, and to perform activities in such a way that will not negatively impact the property rights of its members.” (Compl. ¶ 27.) Plaintiffs allege that “[b]ased upon the allegations set forth [in the Complaint], the Association breached the above obligations.” (Id. ¶ 28.)

Defendant seeks summary adjudication of the Third Cause of Action for Breach of Governing Documents on the grounds that Plaintiffs do not possess, and cannot reasonably obtain, the evidence needed to establish that there was any breach.

Defendant seeks summary adjudication on the grounds that Plaintiffs’ Complaint fails to specify what provisions of the Governing Documents were breached by Defendant, because “[i]n a Special Interrogatory propounded on Plaintiff Cary Bren, he was asked to specify which provisions of the “Governing Documents” were breached by EBCA,” and “[i]n his response, Plaintiff Carey Bren objected and did not substantively respond,” and because Plaintiffs have no evidence of breach. (Def.’s Evid., Ex. 23 [Response to Special Interrogatory No. 55].)

“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof” for a motion for summary judgment or adjudication “pursuant to section 437c.” (Union Bank v. Superior Ct. (1995) 31 Cal. App. 4th 573, 590.) “Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Id.) “A plaintiff's ‘factually devoid’ discovery responses may be used to shift the burden of production onto the plaintiff when the ‘logical inference’ is that the plaintiff possesses no facts to support his or her claims.” (Bayramoglu v.

Nationstar Mortg. LLC (2020) 51 Cal. App. 5th 726, 733.) However, when the plaintiff responds by reference to external documents or asserts an objection (even if meritless) instead of providing facts in the discovery response, there is no logical inference that plaintiff has no facts to support his or her claims. (Id. at 733-734.)

Here, Defendant’s reliance of Plaintiffs’ “factually-devoid” discovery response to seek summary adjudication is without merit. Plaintiffs’ assertion of an objection rather than providing a substantive response, is not a factually-devoid response and does not lead to the logical inference that Plaintiffs have no evidence to support their claim.

Nevertheless, outside of that argument, Defendant demonstrates that Plaintiffs do not have and cannot obtain evidence to support the Third Cause of Action as pled in the Complaint. Plaintiffs assert that the amended CCRs for the community state that “[a]ny violation of the Governing Documents, as well as a violation of any law within the Development, is declared to be and shall constitute a nuisance.” (Krolikowski Dec., Ex. F § 13.4.) However, instead of providing evidence of a nuisance, Plaintiffs improperly rely on their allegations in the complaint that Defendant is required to “maintain and operate various portions of the Emerald Bay community (including any common areas) in an appropriate manner and condition, to not create a nuisance that results in an interference with the comfortable use and enjoyment of its member’s property, and to perform activities in such a way that will not negatively impact the property rights of its members.” (Compl. ¶ 27.)

Plaintiffs provide no evidence of this requirement.

Moreover, as discussed above, the plaintiffs have not established a nuisance on the property. Thus, to the extent that in some unidentified portion the CCR’s require the defendant to maintain the property to avoid a nuisance, there can be no violation of this portion with a nuisance not set forward.

The only evidence of Defendant’s alleged violations of Governing Documents provided by Plaintiffs are violations regarding the drainage and lighting issues. As stated above, the drainage and lighting issues are outside the scope of the Complaint and cannot be considered for purposes of summary adjudication.

As Defendants have demonstrated that Plaintiffs have no evidence to support their Third Cause of Action, and Plaintiffs have not demonstrated that any such evidence can be obtained, the court grants Defendant’s Motion for Summary Adjudication of the Third Cause of Action.

Defendant is ordered to give notice of this ruling to Plaintiffs.