Judge: Christian R. Gullon, Case: 23STCV05277, Date: 2023-10-09 Tentative Ruling

Case Number: 23STCV05277    Hearing Date: November 1, 2023    Dept: O

Tentative Ruling

Petitioner CYNTHIA ESCUTIA-COBAIN’s MOTION FOR PRELIMINARY

INJUNCTION is DENIED.  

The Opposition makes references to multiple related cases. (Opp. p. 2, fn. 1 [“Petitioner and her husband Arthur Cobian have also filed multiple lawsuits (i.e., Case Nos. 21WCSC01360, 21WCSC01377, 23WCSC00262, 23WCSC00211, and 23PSRO00366) against residents that are upset that Petitioner refuses to grant access to the Association so that re-pipe project can be completed.  These lawsuits target such residents' statements made during board meetings concerning Petitioner's failure to comply with the CC&Rs and granting access.”].) Plaintiff is to comply with California Rules of Court Rule 3.300 [Notice of Related case].

Background

This action pertains to the HOA’s bylaws. Petitioner/Plaintiff CYNTHIA ESCUTIA-COBIAN in her petition states, inter alia, that two persons elected to the Board of Directors, Isabel Hsieh and Karen Lee, are not resident Unit Owners” as neither live in any condominium of in the Fall Creek community but rent the units to third parties, in violation of Article IV of the bylaws.

On March 9, 2023, Plaintiff filed the instant ‘petition for writ of mandate, declaratory relief, and injunction.’

On April 27, 2023, Plaintiff filed the instant motion for preliminary injunction.

On June 21, 2023, Plaintiff filed an amended petition against the Respondents.

On July 13, 2023, the court issued, in pertinent part, the following minute regarding Plaintiff’s ex-parte application ‘For Temporary Restraining Order Pending Hearing On Preliminary Injunction And Order To Advance The Hearing On The Preliminary Injunction Persently Set For Hearing On October 9, 2023’: “The moving party has failed to make an affirmative factual showing of irreparable harm, immediate danger, or any statutory basis for granting relief Ex Parte pursuant to California Rules of Court 3.1202(c).”

On July 21, 2023, Respondents filed a verified answer to the first amended petition.

On July 26, 2023, Respondents filed a cross-complaint against Plaintiff for Violation/Breach of the Governing Documents; Injunctive Relief; and Damages. (Based upon a review of the cross-complaint, it is predicated upon the allegation that the HOA has determined it is necessary to re-pipe all of the buildings within the development, but Plaintiff has refused to allow the HOA access to Plaintiff’s unit for the re-pipe project.)

On July 31, 2023, Respondents filed their first amended verified answer.

On September 21, 2023, Plaintiff filed a substitution of attorney (replacing William B. Hanley with Feldsott, Lee & Nichter).

On September 26, 2023, Respondents filed their opposition to the preliminary injunction motion.

On October 2, 2023, Plaintiff filed a reply.

On October 9, 2023, the court continued the hearing and allowed for supplemental briefing.

On October 20, 2023, Respondents filed their supplemental opposition.

On October 26, 2023, Plaintiff/petition filed a supplemental reply.

Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) The burden of proof is on the plaintiff as moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481, emphasis added.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)   

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67, emphasis added.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.) Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  (Doe v. Wilson (1997) 57 Cal.App.4th 296, 304.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.) While a court must consider both factors in making its decision, it may deny a preliminary injunction if either of the two factors alone would support a ruling denying relief. (See Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 459.)

Discussion

Previously, the court denied the motion for Plaintiff’s failure to discuss irreparable harm. While preliminary injunctions are permitted in election challenges (Reply p. 5, citing Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 928–929 [preliminary injunction granted for Civil Code section 5145 challenge]), Plaintiff is not seeking injunctive relief based on election challenges.

Plaintiff seeks an injunction for an order that Respondents (a) comply with Article IV that only resident unit owners serve as members of the board of directors and (b) remove Hsieh and Lee as neither are ‘resident unit owners’ as required by the bylaws. (Motion p. 2:7-17.) With that, Plaintiff’s characterization that the action is an “election challenge under Civil Code section 5145” for the upcoming 2023 election is misplaced. (Reply p. 8.) The motion seeks injunctive relief to remove respondents as they are not resident unit owners, and Defendants have offered evidence to indicate they are resident unit owners.

The 2017 Amendment amended section 4.01 to define a resident unit owner as one who “reside[s] within ten (10) miles of the Project during their terms as Directors.” (Opp. p. 3.) According to Hsieh, she resides onsite at the Fall Creek community at 318 S Prospectors Rd #46 Diamond Bar, CA 91765. As for Lee, she resides at 1074 Longview Dr, Diamond Bar, CA 91765 (which appears to be about 3 miles away from the community). (The evidentiary objections as to Respondents’ residences are overruled as they are based on Respondents’ personal knowledge.)

To the extent that Plaintiff in reply may argue that the 2017 amendment is not valid, the one-year statute of limitations has grossly passed. (See Opp. p. 5, citing to Cal. Civ. Code, § 5145(a) - 1-year statute of limitations applicable to HOA elections that would include amending the Bylaws; Cal. Civ. Code, § 5100(a) - amendment of the governing documents.)

All in all, as the crux of the complaint and motion for preliminary injunction are predicated upon the allegation that Respondents are not resident unit owners and the evidence establishes otherwise, the motion is denied in so far as Plaintiff will not prevail on the merits of her complaint.

Conclusion

Based on the foregoing, the motion is denied.