Judge: Curtis A. Kin, Case: 24STCV31096, Date: 2025-01-28 Tentative Ruling
Case Number: 24STCV31096 Hearing Date: January 28, 2025 Dept: 86
ORDER TO SHOW CAUSE
RE: PRELIMINARY INJUNCTION
Date: 1/28/25 (1:30 PM)
Case: 1701 Remington, LLC et al. v. Natasha Bulgakova-Cohen (24STCV31096)
TENTATIVE
RULING:
Plaintiff 1701 Remington, LLC and Heidi Katz’s request for a
preliminary injunction is GRANTED IN PART.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This is a breach of contract and nuisance action involving two
neighbors. Since March 2021, plaintiff 1701 Remington, LLC (“1701 Owner”) owns
Unit 1701 of The Remington Condominiums (“Remington”) located at 10727 Wilshire
Blvd. in Los Angeles. (H. Katz Decl. ¶ 2; T. Katz Decl. ¶ 2;
Bulgakova-Cohen Decl. ¶ 3 & Ex. 2.) Since February 2024, defendant Natasha Bulgakova-Cohen
has owned Unit 1801 of the Remington. (Bulgakova-Cohen Decl. ¶ 2 & Ex. 1.)
Unit 1801 is located directly above Unit 1701. (H. Katz Decl. ¶ 2;
Bulgakova-Cohen Decl. ¶ 3.)
Plaintiff Heidi Katz began occupying Unit 1701 in November
2021. (H. Katz Decl. ¶ 2.) Defendant Bulgakova-Cohen and defendant Eliran Cohen
began occupying Unit 1801 with their two children, ages 4 and 14, in April
2024. (Bulgakova-Cohen Decl. ¶ 2.)
Prior to moving into Unit 1801, defendants sought to replace
the flooring with hardwood with a base of cork. (Bulgakova-Cohen Decl. ¶ 4.) The
Chief Engineer of the Remington approved defendants’ specifications for the
flooring. (Bulgakova-Cohen Decl. ¶ 4 & Ex. 3.)
Plaintiff Katz contends that, since defendants moved into
Unit 1801, she has endured “extreme noise disturbances” from defendants’ unit, including
“loud voices, screaming, running, jumping, ball bouncing, dog barking, heavy
walking, piano playing, and general thudding on the hard surface flooring at
virtually all hours of the day.” (H. Katz Decl. ¶ 4.) Katz has difficulty
working and sleeping due to the noise. (H. Katz Decl. ¶ 5.) The noise has also caused
muscle tightness in Katz, exacerbating her back and hip condition and causing
pain. (H. Katz Decl. ¶ 5.) The noise has also aggravated Katz due to her
attention deficit disorder. (H. Katz Decl. ¶ 6.) Katz attempted to cover up the
noise by using noise-cancelling headphones, running the dryer with wool balls, and
leaving the television and stove fan on. (H. Katz Decl. ¶ 6.) Katz has also had
insulation installed in her ceiling. (H. Katz Decl. ¶ 10.) Katz’s attempts to
mask the noise were unsuccessful. (H. Katz Decl. ¶¶ 6, 10.)
Katz complained to the General Manager of the Remington, who
communicated with all parties to find a solution. (H. Katz Decl. ¶¶ 7-9 &
Ex. 2; Bulgakova-Cohen Decl. ¶ 5; Evangelho Decl. ¶¶ 6-8.) The General Manager
was unsuccessful. (Evangelho Decl. ¶ 8.) Heidi Katz and plaintiff Todd Katz, managing
member of 1701 Owner, had a formal complaint filed with the Board of Directors
of the Remington demanding that defendants install carpeting over 80% of hard
surface flooring in their unit pursuant to the Remington’s Covenants,
Conditions & Restrictions. (H. Katz Decl. ¶ 11; T. Katz Decl. ¶ 6; Selmont
Decl. ¶ 3 & Ex. B.) On 11/18/24, the General Manager conveyed plaintiffs’
demand to defendants and imposed a deadline of 1/18/25. (Bulgakova-Cohen
Decl. ¶ 8; Evangelho Decl. ¶ 8 & Ex.
9.)
Defendants had their unit tested for airborne and impact
sound isolation. (Bulgakova-Cohen Decl. ¶ 5; Busch Decl. ¶ 2 & Ex. 6;
Evangelho Decl. ¶ 5.) The unit satisfied the requirements of the codes of the State
of California and the standards set forth in the Remington Covenants,
Conditions & Restrictions. (Busch Decl. ¶ 2 & Ex. 6 at 2.)
According to an email from the General Manager to Heidi Katz
dated 4/30/24, defendant Bulgakova-Cohen was not amenable to rugs because “she
likes the clean look.” (H. Katz Decl. ¶ 8 & Ex. 2.) Bulgakova-Cohen
now contends that she is “highly allergic” to carpet flooring and rugs and
“prone to severe headaches, skin rash, upper respiratory and breathing problems,”
and she has submitted a brief doctor’s note to that effect. (Bulgakova-Cohen
Decl. ¶ 7 & Ex. 8.) Bulgakova-Cohen has also submitted a request for reasonable
accommodation not to install carpeting to the General Manager. (Evangelho Decl.
¶ 9 & Ex. 10.) Defendants are willing to add and have been adding
hypoallergenic rugs to their unit. (Bulgakova-Cohen Decl. ¶¶ 11-13.)
On 11/25/24, plaintiffs filed a Complaint. On 1/6/25,
pursuant to plaintiffs’ ex parte application, the Court (Hon. Stephen I.
Goorvitch) issued an order to show cause why a preliminary injunction ordering
defendants to comply with 5.28 of the Covenants, Conditions & Restrictions
of Remington Plaza Homeowners Association.
Defendants filed an opposition on 1/17/25. Plaintiffs filed
a reply on 1/23/25.
II.
ANALYSIS
Plaintiffs seek a preliminary injunction ordering defendants
to install carpeting to cover at least 80% of the flooring in Unit 1801.
“[T]he question whether a preliminary injunction should be
granted involves two interrelated factors: (1) the likelihood that the
plaintiff will prevail on the merits, and (2) the relative balance of harms
that is likely to result from the granting or denial of interim injunctive
relief.” (White v. Davis (2003) 30 Cal. 4th 528, 554.)
With respect to plaintiffs’ probability of prevailing on the
merits, all owners of units in the Remington are bound by the Covenants,
Conditions & Restrictions governing the Remington. (H. Katz Decl. ¶ 3 &
Ex. 1 [“CC&Rs”]; Civ. Code § 5975(a) [“The covenants and restrictions in
the declaration shall be enforceable equitable servitudes, unless reasonable, and
shall inure to the benefit of and bind all owners of separate interests in the
development”].)
Section 5.6 of the CC&Rs states: “No Owner shall permit
or suffer anything to be done or kept upon or in such Owner’s Unit or the
Common Area which will obstruct or interfere with the rights of other Owners,
their families, guests, tenants, servants and invitees, nor annoy them by unreasonable
noises or otherwise, nor which shall in any way interfere with the quiet
enjoyment by each owner of such Owner’s respective Condominium, not shall any
Owner commit or permit any nuisance, noxious or offensive activity, or any
illegal act to be committed thereon or therein.” (H. Katz Decl. ¶ 3 & Ex. 1
at 30.)
Section 5.27 of the CC&R states: “In any multi-family
dwelling, sound may be audible between Units, particularly where the sound
level of the source is sufficiently high and the background noise in an
adjacent Unit is very low. Each Owner shall endeavor to minimize any noise
transmission from his Unit, and shall adhere to any of the Rules and
Regulations which are designed to minimize noise transmission.” (H. Katz Decl.
¶ 3 & Ex. 1 at 43.)
Section 5.28 of the CC&Rs states: “[I]f, following
installation of any such hard surface floor, the Owner of the Unit located
beneath such installation lodges a complaint with the Board concerning the
sound impact of such flooring on the complaining Owner’s unit, the Owner
installing such hard surface flooring shall, upon notice from the Board, cover
at least eighty percent (80%) of the hard surface flooring within such Owner’s
Unit with carpeting in order to mitigate the impact to the complaining Owner,
and the failure of the Owner notified by the Board to comply with the Board’s
requirement within sixty (60) days after receipt of that notice shall
constitute a violation of this Declaration and subject the violating Owner to
all remedies provided by the Restrictions or applicable law.” (H. Katz Decl. ¶
3 & Ex. 1 at 43.)
In or about March 2024, prior to moving into Unit 1801,
defendants replaced the flooring with hardwood. (Bulgakova-Cohen Decl. ¶ 4; H.
Katz Decl. ¶ 2.) According to plaintiffs, noise emanating from Unit 1801 has
interfered with Heidi Katz’s quiet enjoyment of Unit 1701. (H. Katz Decl. ¶¶ 5,
6.) Plaintiffs lodged a complaint with the Remington’s Board regarding the
sound impact of the hardwood flooring. (H. Katz Decl. ¶ 11; T. Katz Decl. ¶ 6;
Selmont Decl. ¶ 3 & Ex. B.) Accordingly, under section 5.28 of the
CC&Rs, defendants may be required to cover at least 80% of the newly
installed hardwood flooring with carpeting to mitigate the sound impact to
plaintiff Heidi Katz.
Defendants argue that section 5.28 does not provide for a
hearing to contest the Remington’s order to install carpeting. However,
defendants cite no authority requiring a hearing. Contentions unsupported by
citation of authority will be disregarded. (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368; Valov v. Department of Motor Vehicles (2005) 132
Cal.App.4th 1113, 1132.) As stated above, under Civil Code § 5975(a),
defendants are bound by the CC&Rs. Section 5.28 allows the Remington to
order the installation of carpeting upon the complaint of the owner of the unit
beneath the unit where hard surface flooring was installed. No hearing is
required under section 5.28.
Defendants also contend that plaintiffs’ demand for total
silence is not required under the CC&Rs. But plaintiffs do not demand total
silence. In an effort to minimize the sound emanating from the unite directly
above them, plaintiffs seek the remedy to which they may be entitled under the
CC&Rs, i.e., enforcement of section 5.28 to have carpeting
installed. Plaintiffs do not—indeed, could not—seek to enjoin defendants from
making any noise.
Defendants further contend that defendant Bulgakova-Cohen
has a documented allergy to carpeting and that she requested a reasonable
accommodation of her allergy. (Bulgakova-Cohen Decl. ¶ 7 & Ex. 8; Evangelho
Decl. ¶ 9 & Ex. 10.) However, defendants do not deny that hypoallergenic
carpeting is available. (See Selmont Decl. ¶ 4 & Exs. C, D.) Indeed,
defendants have installed hypoallergenic rugs in their unit. (Bulgakova Cohen
Decl. ¶¶ 11-13.) Defendants do not state why Bulgakova-Cohen’s allergy may be
accommodated by hypoallergenic rugs, but not hypoallergenic carpeting.
Accordingly, the CC&Rs are fully enforceable “unless
unreasonable.” (Civ. Code § 5975(a).) Courts must enforce use restrictions “unless
the challenger can show that the restriction is unreasonable because it is
arbitrary, violates a fundamental public policy, or imposes burdens on the use
of the affected property that substantially outweigh the restriction’s
benefits.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8
Cal.4th 361, 389.) Reasonableness is determined “by reference to the common
interest development as a whole,” “not by reference to facts that are specific
to the objecting homeowner.” (Id. at 386.)
Plaintiffs believe that they have the “unilateral right to
insist on carpeting if noise issues arise.” (Ex Parte App. at 13:28-14:3.) Defendants
raise the possibility that section 5.28 may be unreasonable by asserting that
the “mere complaint by the lower Owner triggers the requirement to install
carpeting, without any other options.” (Opp. at 3:12-13.) In theory, under
section 5.28, the owner of a lower unit could lodge a noise complaint against
an upper unit and trigger an obligation to install carpeting even if no noise
is coming from above. Such invocation of section 5.28 would be arbitrary. Consistent
with this view that section 5.28 must be reasonable in order to be enforced, sections
5.6 and 5.27 include an element of reasonableness. (H. Katz Decl. ¶ 3
& Ex. 1 at 30 [section 5.6 prohibits “unreasonable noises”]; H. Katz Decl.
¶ 3 & Ex. 1 at 4 [section 5.27 requires owner to “endeavor to minimize any
noise transmission,” not eliminate it].)
On this record, plaintiffs have demonstrated it is
reasonably probable they may prevail in demonstrating the noise emanating from defendants’
unit is unreasonable. Plaintiff Heidi Katz claims in her declaration that she continues
to hear “loud voices, screaming, running, jumping, ball bouncing, dog barking,
heavy walking, piano playing, and general thudding on the hard surface flooring
at virtually all hours of the day.” (H. Katz Decl. ¶ 4; H. Katz Reply Decl. ¶
3.) Defendants do not provide any evidence or argument to dispute whether such
claimed noise is coming from their unit. Instead, defendants state that they
attempt to have their children be quiet but are not always successful. (Bulgakova-Cohen
Decl. ¶ 9.)
Defendants argue that an acoustical test revealed that their
unit complies with state and Remington standards. (Busch Decl. ¶ 2 & Ex. 6
at 2.) According to plaintiffs, however, the test performed on defendants’ unit
does not measure “subjective sound experience.” (LoVerde Decl. ¶ 11.) While
defendants’ unit may have met acoustical standards, the test does not measure
the frequency of the noise, time of exposure, or level variation, which could
affect plaintiff Heidi Katz’s reaction to the noise. (LoVerde Decl. ¶¶ 11, 12.)
Further, the test only measures sounds from voices, speakers, or music, not
sounds from impact or vibration, such as footsteps or chairs. (LoVerde Decl. ¶
13.) Thus, based on the frequency and types of noise to which plaintiffs attest
(H. Katz Decl. ¶¶ 4-6), plaintiffs’ noise complaints may still be legitimate,
despite defendants’ unit having passed an acoustical test.
Accordingly, with respect to plaintiffs’ first cause of
action for breach of contract, plaintiffs demonstrate a probability of
prevailing on their claim that defendants’ refusal constitutes a violation of section
5.28 of the CC&Rs. Defendants have refused to install carpeting that would
minimize the noise coming from their unit. (Selmont Decl. ¶ 3; Bulgakova-Cohen
Decl. ¶ 7.) Defendants may have also violated sections 5.6 and 5.27 of the
CC&Rs by failing to minimize noise emanating from their unit, thereby unreasonably
interfering with plaintiff Heidi Katz’s quiet enjoyment of her unit.
With respect to plaintiffs’ second cause of action for
nuisance, section 13.4 of the CC&Rs states: “[T]he result of every act or
omission whereby any covenant contained in this Declaration is violated in
whole or in part is hereby declared to be a nuisance, and every remedy against
nuisance, either public or private, shall be applicable against such act or
omission.” (H. Katz Decl. ¶ 3 & Ex. 1 at 85.) Accordingly, defendants’ possible
violations of sections 5.6, 5.27, and 5.28 of the CC&Rs also constitutes a
nuisance.
For the foregoing reasons, plaintiffs have demonstrated a
likelihood of prevailing on the merits.
With respect to the balance of harms, even though plaintiffs
demonstrate a likelihood of prevailing on the merits, defendants could
ultimately prevail at trial if they are able to demonstrate that allowing
plaintiffs to exercise the unilateral right to demand installation of carpeting
under section 5.28 is unreasonable. Consequently, the Court finds that an
injunction requiring defendants to undergo the effort and expense of installing
carpeting (and potentially removing the hardwood flooring) for the pendency of
this litigation is unwarranted. The Court instead finds that an interim
provisional remedy of ordering installation of rugs pending trial is
appropriate. (See Ryland Mews Homeowners Assn. v. Munoz (2015) 234
Cal.App.4th 705, 713 [finding “interim remedy of using throw rugs” reflected a
“balanced consideration of the circumstances of everyone involved” and was not
an abuse of discretion].)
Because the Court orders installation of rugs as opposed to plaintiffs’
preferred option of carpeting, plaintiffs’ request for a preliminary injunction
is GRANTED IN PART.
The Court clarifies that, consistent with section 5.28 of
the CC&Rs, defendants are required to install rugs to cover 80% of the hardwood
flooring defendants installed before occupying Unit 1801, not 80% of the
flooring of the entire unit. (See Bulgakova-Cohen Decl. ¶ 11 [foyer,
bathroom, and kitchen were tiled prior to defendants’ occupancy of Unit 1801].)
Section 5.28 states that, after the Remington approves the plans and
specifications for the installation of hard surface flooring, “if, following
installation of any such hardwood floor,” the owner of the unit beneath
the unit where the flooring was installed lodges a complaint concerning the
sound impact, “the Owner installing such hard surface flooring shall,
upon notice from the Board, cover at least eighty percent (80%) of the hard
surface flooring within such Owner’s unit with carpeting in order to mitigate
the impact to the complaining Owner.” (H. Katz Decl. ¶ 3 & Ex. 1 at 43.) By reference to “any such” and “such” hardwood
flooring requiring 80% carpeting, section 5.28 clearly refers to the hardwood
flooring that was approved and installed pursuant to section 5.28. The language is of section 5.28 is clear on
this point.
Moreover, such reading of the clear language of section 5.28
is sensible in light of the purpose of section 5.28. By reference to “the impact to the
complaining Owner,” section 5.28 is designed to remedy the sound impact
resulting from installation of the previously approved hard surface flooring. The
Court thus finds that, pending trial, defendants are required to install rugs
on 80% of the hardwood flooring that defendants had installed before occupying
Unit 1801.
Plaintiffs also suggest that, if rugs are to be used, “they
shall be a cut pile that is a minimum of 30 oz./yd. and be installed over a
carpet pad that is minimum of 1/2 inch thick and equal to Mohawk Ultra-Premium
Rug Pad.” (LoVerde Decl. ¶ 14.) Absent any argument from defendants at the
hearing, this proposal appears to be reasonable. The Court will hear from the parties
regarding the terms and language of the injunction to be issued.
Lastly, the Court must require an undertaking for the amount
of damages (including litigation fees and costs) the enjoined party may sustain
by reason of the preliminary injunction if it is later determined the
injunction should not have issued. (CCP 529(a).) The Court will hear from the parties as to what
amount of undertaking shall be required before any injunction shall take effect.
.