Court Upholds Injunction on Sale of Japanese Garden

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Signs opposing the sale of the Hannah Carter Japanese Garden have been placed outside the entrance to the garden, which is currently closed to the public.

Rafu Staff Report

Supporters of the Hannah Carter Japanese Garden in Bel Air won a legal victory last week when the California Court of Appeal upheld a lower court’s 2012 injunction barring UCLA from selling the garden.

In a decision handed down Sept. 12, Justices Edward Ferns, Roger Boren and Victoria Chavez of Division 2 concluded that “the trial court properly exercised its discretion in granting a preliminary injunction” and that Hannah Carter’s children “demonstrated a probability of prevailing on the merits.”

This gold-leaf Buddha in the garden’s temple has been removed by UCLA.

At issue is the university’s attempt to sell the garden despite an earlier promise to maintain it in perpetuity.

The one-acre garden, located on Bellagio Road, was built over the course of two years starting in 1959. Designed by renowned landscape architect Nagao Sakurai, it has been recognized as one of the finest examples of a Japanese garden in North America.

Edward Carter, a member of the UC Board of Regents from 1952 to 1988, facilitated UCLA’s acquisition of the garden and an adjacent residence from the original owners, Gordon and Verabelle Guiberson, in 1964. UCLA agreed to enter into an escrow to purchase the garden and Carter agreed to enter into an escrow to purchase the residence.

The parties agreed that Carter would bequeath the residence to the university, reserving for himself a life estate and the ability of his wife, Hannah, to live in the residence for two years after his death. Thereafter, the residence was to be used by the university’s chief administrative officer or “distinguished guests.”

Under the 1964 agreement, UCLA was required to “maintain the existing Japanese garden … in good condition and repair,” and, if it sold the residence, to sell it together with the garden.

In 1982, the agreement was amended because UCLA did not want to use the residence for the chancellor. The new agreement deleted the requirement that the garden be sold with the residence and required the university “to retain the garden portion in perpetuity” as the Hannah Carter Japanese Garden.

There was also a covenant calling for the establishment of “an endowment of $500,000, the income to be used in perpetuity for the maintenance and improvement of the Hannah Carter Japanese Garden.”

Edward Carter died in 1996 and Hannah Carter continued to live in the residence. A 1999 amendment gave her the right to rent the residence for an extended period and gave UCLA the option to keep or sell the residence once her occupancy ended. She passed away in April 2009.

In May 2009, the chancellor of UCLA sent a letter to Mrs. Carter’s daughter Anne Caldwell, assuring her that her mother’s “name and legacy will live on through the Hannah Carter Japanese Garden, a beautiful reminder of her gracious and giving spirit.”  There was no mention of the university’s intent to sell the garden.

Ed and Hannah Carter

In July 2010, UCLA filed a “petition to modify trust” in probate court in Alameda County, seeking authorization to sell the garden “in deviation from an agreement with the donor who funded its purchase.”

The university argued that its continued ownership and maintenance of the garden had become impractical, citing lack of parking, the small number of visitors (about 2,000 per year), inadequate funds from the endowment, and the garden’s failure to serve any research or instructional purpose. The petition was granted in September 2010.

UCLA listed the garden for sale at a price of $5.7 million, with no requirement that the garden be preserved or maintained. The residence was listed for sale for $9 million.

After learning of the proposed sale, the Caldwells — supported by several conservation groups — filed a complaint in May 2012, alleging breach of contract. The following month, they moved for a preliminary injunction to block the sale and force UCLA to continue to maintain the garden. UCLA claimed that the family lacked standing to challenge or enforce a charitable trust.

In July 2012, the trial court ruled, “Plaintiffs sufficiently establish a reasonable probability of prevailing on the merits of the action based on their characterization of the transaction as an enforceable contractual exchange of consideration between UCLA and Edward Carter. In exchange for conveyance of the residential parcel, Carter accepted UCLA’s promise to keep the garden parcel as the Hannah Carter Japanese Garden in perpetuity.

“Plaintiffs also establish that UCLA has breached the 1982 amendment by removing certain items of artwork and sculpture from the gardens and by taking steps to sell the garden parcel entirely, including obtaining a probate court judgment allowing them to sell the garden parcel.”

UCLA appealed, asserting that the trial court mischaracterized the transaction as a contract rather than a charitable trust. The Court of Appeals responded by stating that “the trial court acted within its discretion in rejecting appellant’s efforts to characterize its obligation as something other than a bargained-for exchange.”

The Court of Appeals also found that: “The evidence is undisputed that the Caldwells had an interest in the garden as Hanna’s heirs and the trustees of her trust, and that they did not receive notice of the probate court proceedings.”

The UCLA Faculty Association said in its blog on Sept. 13, “It appears that if the university had not secretly gone to an Oakland court to get permission to hold the sale and had worked with the family and conservation groups, this litigation could have been avoided.”

UCLA officials said in a statement, “We continue to believe that selling the Japanese garden is in the best interests of the university. Campus resources are best applied toward UCLA’s academic mission rather than toward a garden that serves no teaching or research purpose and lacks the parking or shuttle space to operate as a public asset.

“The bidding and sale process will remain suspended until this matter is resolved.”

Save the Hannah Carter Japanese Garden has an online petition, addressed to UCLA Chancellor Gene Block, on Change.org with 4,662 supporters as of Tuesday.

The group said on its Facebook page, “UCLA’s arguments were dismissed one by one. A great day for the garden! It’s not over, but surely this is one giant step forward.”

Supporters of the garden include The Garden Conservancy, Los Angeles Conservancy, California Preservation Foundation, California Garden and Landscape History Society, Cultural Landscape Foundation, American Society of Landscape Architects, National Trust for Historic Preservation, North American Japanese Garden Association, and American Public Gardens Association.

Photos from the “Save the Hannah Carter Japanese Garden” Facebook page

Hannah Carter at the garden’s teahouse.

The garden’s koi waiting to be fed.

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