Judge: Curtis A. Kin, Case: 24STCV31427, Date: 2025-01-14 Tentative Ruling
Case Number: 24STCV31427 Hearing Date: January 14, 2025 Dept: 86
ORDER TO SHOW CAUSE
RE: PRELIMINARY INJUNCTION
Date: 1/14/25
(1:30 PM)
Case: Confetti Homeowners Association
v. John T. Heaney et al. (24STCV31427)
TENTATIVE RULING:
Plaintiff Confetti Homeowners Association’s request for a
preliminary injunction is GRANTED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Confetti Homeowners Association is a two-story
garden-style condominium complex comprised of 140 units (“Complex”) located in
Canyon Country. (Devitt Decl. ¶¶ 2, 5.) The Carl A. Heaney Living Trust (“Trust”)
is the owner of the real property located at 18806 Mandan Street, #215, Canyon
Country, California 91351 (“Unit”), one of the units in the Complex. (Devitt
Decl. ¶ 5 & Ex. 3.) Defendant John T. Heaney is Trustee of the Trust.
(Heaney Decl. ¶ 1.) The Unit is currently occupied by defendant Carla Joy
Rabaglia. (Devitt Decl. ¶ 7.)
Ross Morgan & Company, Inc. (“Ross Morgan”) is the
property management company for plaintiff. (Devitt Decl. ¶ 1.) On October 30,
2024, Rabaglia notified Ross Morgan that a severe water leak occurred in the
Unit. (Devitt Decl. ¶¶ 11, 12.) Ross Morgan sent Heys Plumbing to fix the leak
and determine the source of the leak. (Devitt Decl. ¶ 11.) On October 30, 2024,
a plumber went to an adjacent unit, unit 201, to address a water leak, but the
plumber could not find the source of the leak. (Jasso Decl. ¶ 4.) The plumber
then went to the subject Unit, and Rabaglia allowed the plumber to enter.
(Jasso Decl. ¶¶ 5, 6.) The plumber determined that a water supply line to the
dishwasher in the Unit failed. (Jasso Decl. ¶ 5 & Ex. 4.) The plumber
stopped the leak. (Jasso Decl. ¶ 5 & Ex. 4.)
During the plumber’s visit, the Unit was completely flooded
with one to two inches of water. (Jasso Decl. ¶ 7 & Ex. 5.) The plumber
described the Unit as “filled…with trash, waste and feces” and smelling “absolutely
horrible.” (Jasso Decl. ¶ 8.) The plumber “needed to wear a mask to protect
[his] health.” (Jasso Decl. ¶ 8.)
On November 7, 2024, a technician certified in water
remediation and applied structural drying went to the Unit to inspect it and
determine the work necessary for remediation. (Gross Decl. ¶ 6.) Rabaglia
let the technician enter the Unit. (Gross Decl. ¶ 6.) Due to the “bio-hazardous
condition of the Unit,” the technician was required to wear a respirator mask.
(Gross Decl. ¶ 6.) An offensive smell emanated from the Unit as far as 10 feet.
(Gross Decl. ¶ 6.) Bags and boxes of trash filled the porch. (Gross Decl. ¶ 6
& Ex. 6.) The interior was completely filled with trash as well. (Gross
Decl. ¶¶ 6, 13 & Ex. 6.) The toilet in the bathroom was inoperable, with
used toilet paper piled nearby. (Gross Decl. ¶ 6 & Ex. 6.) Mold was growing
in the Unit. (Gross Decl. ¶ 11.) The carpet in the Unit was saturated and
seeping into an adjacent unit. (Gross Decl. ¶ 6 & Ex. 6 [page 203 of 229 in
PDF file].)
Stating that she needed to leave for an appointment, Rabaglia
had the technician and his co-worker leave. (Gross Decl. ¶ 7.) Rabaglia stated
that the technician could return on November 9, 2024. (Gross Decl. ¶ 7.)
Rabaglia has since refused to provide the technician with access to the Unit.
(Gross Decl. ¶ 8; Gross Reply Decl. ¶¶ 14, 17.)
The technician needs to access the Unit to remediate the
water damage to the common areas of the Complex in addition to the individual
living units. (Gross Decl. ¶ 10; Devitt Decl. ¶ 11.) Without treatment of the
sitting water, mold will grow and spread quickly, causing damage to other units
and order areas of the common area. (Gross Decl. ¶ 10; Gross Reply Decl. ¶ 15.)
The technician cannot remediate Unit 201 adjacent to the Unit because water
continues to seep into Unit 201 from the Unit. (Gross Decl. ¶ 12.)
The technician anticipates needing two to three days to clear
the contents of the Unit; two additional days to perform water remediation
services, including removing drywall and flooring, vacuuming the Unit, and
treating the Unit with an anti-microbial chemical agent; and three days to dry
the Unit. (Gross Decl. ¶ 14.) Water remediation to the common area between the
Unit and Unit 201 is part of the technician’s recommended work, but the
technician cannot remediate the common area without access to the Unit. (Gross
Decl. ¶ 14.)
The Unit is attracting vermin and rodents. (Devitt Decl. ¶¶
8, 20.) The owners of the unit adjacent to the Unit have moved out of the
Complex due to the smell from the Unit. (Devitt Decl. ¶ 20.) Defendant Heaney
is currently seeking to evict Rabaglia. (Heaney Decl. ¶ 14.)
On December 12, 2024, the Court (Hon. Stephen I. Goorvitch)
granted plaintiff’s Ex Parte Application for Temporary Restraining Order and
Order to Show Cause re Preliminary Injunction. Judge Goorvitch authorized the
contractors and/or agents of plaintiff to enter the Unit to “make necessary
repairs and abate hoarding conditions jeopardizing health and safety provided
they give 24 hours’ notice before doing so.” (12/12/24 Minute Order at 1;
12/12/24 Order at 3-4.) Judge Goorvitch also issued an Order to Show Cause (“OSC”)
why a preliminary injunction shall not issue and set a briefing schedule with
respect thereto. (12/12/24 Minute Order at 1.)
Plaintiff posted a Notice to Enter Dwelling on the door of
the Unit December 18, 2024. (Wathen Decl. ¶ 3 & Ex. 6.) The notice stated
that plaintiff would enter the Unit on December 20, 2024 to make necessary
repairs. (Wathen Decl. ¶ 3 & Ex. 6.) The technician went to the Unit on
December 20, 2024. (Gross Reply Decl. ¶ 14.) Rabaglia admitted to receiving the
notice, but still refused entry to the Unit. (Gross Reply Decl. ¶ 14.)
On December 24, 2024, defendant Heaney filed an opposition
to the OSC. Defendant Rabaglia did not file an opposition. On December 27,
2024, plaintiff filed a reply. The instant action was subsequently assigned to
Department 86. (1/2/24 Minute Order.) On January 8, 2024, defendant Heaney
filed a “supplemental response” to the OSC.
II.
ANALYSIS
Plaintiff seeks a preliminary injunction ordering defendants
John T. Heaney, individually and as Trustee of the Carl A. Heaney Living Trust,
and Carla Joy Rabaglia to allow the repair of the Unit and cease the
accumulation of waste in the Unit.
“[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 plaintiff’s probability of prevailing on the
merits, all owners of units in the Complex are bound by the Covenants,
Conditions, and Restrictions governing the Complex. (Devitt Decl. ¶ 3 & Ex.
1 [“CC&Rs”]; Civ. Code § 5975(a) [“The covenants and restrictions in the
declaration shall be enforceable equitable servitudes…and shall inure to the
benefit of and bind all owners of separate interests in the development”].) Under
the CC&Rs, owners are responsible for ensuring that guests, lessees, and
occupants of the units comply with the CC&Rs. (CC&Rs at § 7.20 [“Each
Owner shall be responsible for compliance with the provisions of the
Declaration, Articles, Bylaws and rules of the Board by his guests, lessees and
all occupants of his Unit….”].)
As the homeowner association, plaintiff may enforce the
CC&Rs. (Civ. Code § 5975(a) [“Unless the declaration states otherwise,
these servitudes may be enforced by any owner of a separate interest or by the
association, or by both”]; CC&Rs at § 16.1 [“The Association or the
Declarant shall have the right to enforce, by any proceeding at law or in
equity, all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by this Declaration”].) “ln the event…an
Owner, or his guests, tenants, invitees or pets, cause the willful or negligent
act or neglect of the same or any other area within the Project, the Board may
notify the owner of the work required and request that the same be done within
a reasonable time under the specific circumstances, provided, however, that the
Board shall have the right to approve the person or company who shall perform
the maintenance or repairs and the method of repair. In the event the Owner
fails to carry out such maintenance or repair within said time period, the
Board may, following notice and a hearing…cause such work to be done and the
cost thereof shall immediately be paid by such Owner to the Association….”
(CC&Rs at § 9.5.)
It is undisputed that the Unit is in a state of disrepair.
Due to a water leak resulting from a rupture in the water supply line to the
dishwasher, sitting water has saturated the carpet in the Unit and has seeped
into adjacent Unit 201. (Jasso Decl. ¶¶ 5, 7 & Ex. 4, 5; Gross Decl. ¶¶ 6,
12 & Ex. 6 [page 203 of 229 in PDF file].) The moisture has led to the
growth of mold, which, if left untreated, will grow and spread quickly to other
units and other areas of the Complex’s common area. (Gross Decl. ¶¶ 10, 11.) In
addition, Rabaglia has allowed trash and feces to pile up inside and outside
the Unit. (Jasso Decl. ¶ 8; Gross Decl. ¶ 6 & Ex. 6.) The smell was so offensive
that the plumber and water remediation technician wore masks to protect their
health. (Jasso Decl. ¶ 8; Gross Decl. ¶ 6.) The condition of the Unit has attracted
rodents and vermin. (Devitt Decl. ¶¶ 8, 20.)
The CC&Rs prohibit noxious or offensive activity in the
Complex. (CC&Rs at § 7.11 [“No noxious or offensive activity shall be
carried on in any Condominium or on the Common Areas, nor shall anything be
done therein which may be or become an annoyance or nuisance….”], see also CC&Rs
at § 16.2 [“The result of every act or omission, whereby any provision,
condition, restriction, covenants, easement, or reservation contained in this
Declaration is violated in whole or in part, is hereby declared to be and constitute
a nuisance….”].) The CC&Rs also require the regular removal of trash from
the Complex. (CC&Rs at § 7.12 [“All rubbish, trash and garbage shall be
regularly removed from Property, and shall not be allowed to accumulate
thereon. Trash, garbage and other waste shall not be kept except in sanitary
containers designed for such purpose”].)
Neither defendant disputes that the prohibitions against
noxious or offensive activity or accumulation of trash and waste set forth in
the CC&Rs have been violated. Plaintiff has requested both defendants to
allow the remedial work proposed by plaintiff to be done, but both defendants
have refused to provide plaintiff’s vendors with access to the Unit. (Gross
Decl. ¶¶ 8, 9; Medioni Decl. ¶¶ 2, 3 & Ex. 7 [demand letter to Heaney dated
11/13/24]; Gross Reply Decl. ¶¶ 14, 17; Medioni Reply Decl. ¶¶ 11, 12.)
For the foregoing reasons, plaintiff has demonstrated it is
likely to prevail on its causes of action based on breach of the CC&Rs and
nuisance. (Compl. ¶¶ 29, 30, 42, 46.) Based on the violations of sections 7.11
and 16.2 and defendants’ refusal to allow access to the Unit, plaintiff has established
cause to enter the Unit and perform necessary water remediation repairs,
pursuant to section 9.5 of the CC&Rs. In addition, based on Rabaglia’s
accumulation of trash and waste in and outside the Unit, plaintiff may enforce
section 7.12 of the CC&Rs and have a preliminary injunction entered to
prevent the accumulation of trash and waste.
Defendant Heaney argues that there was no emergency
justifying the ex parte order issued by Judge Goorvitch. Heaney points to emails
and letters from the property manager and plaintiff’s attorney from March 2024,
indicating that plaintiff has known about Rabaglia’s accumulation of trash
since then. (Heaney Decl. ¶ 8 & Exs. B, C.) Even if plaintiff knew about
Rabaglia’s accumulation of trash since March 2024, the Order issued by the
Court on December 12, 2024 was warranted by the subsequently occurring water
leak and both defendants’ refusal to allow plaintiff and its vendors access to
the Unit in November 2024 to eliminate the resulting mold. (Gross Decl. ¶ 8;
Medioni Decl. ¶¶ 2, 3 & Ex. 7 [demand letter to Heaney dated 11/13/24].)
Heaney next argues that the ex parte order is overbroad and
unconstitutional because it calls for defendants’ “children, family members,
agents, employees, tenants, guests, co-owners, co-occupants” to appear at the
Order to Show Cause hearing. Heaney misses the point of the OSC. The ex parte
order ordered defendants and persons affiliated with the Unit to show cause why
plaintiff’s proposed preliminary injunction should not be granted. Both Heaney,
Trustee of the Trust that owns the Unit, and Rabaglia – the two known
individuals with an interest in the Unit – were provided opportunity to oppose
plaintiff’s request for a preliminary injunction. (Medioni Reply Decl. ¶¶ 9, 10
& Exs. 4, 5.) Heaney filed an opposition. The ex parte application is not
overbroad or unconstitutional.
Heaney also objects to the language in the proposed
preliminary injunction providing plaintiff’s vendors with sole discretion to
determine what of Rabaglia’s personal property to dispose. The language of the
proposed preliminary injunction would order defendants to cease interference
with the efforts of plaintiff’s vendors “to dispose of any personal property
being maintained in the Unit that the Association’s vendors determine, in their
sole discretion, is contaminated as a result of the severe water leak that
occurred in the Unit the (“Flood”) and that must be disposed of in order to
effectuate the repairs to the Unit and Common Area.” (12/12/24 Order at 2-3.)
The CC&Rs prohibit noxious activity and the accumulation of rubbish, trash,
and garbage. (CC&Rs at 7.11, 7.12.) The language of the proposed
preliminary injunction is appropriately tailored to ensure compliance with the
CC&Rs.
Heaney also argues that the unlawful detainer action filed
against Rabaglia offers a less expensive, faster, and more permanent solution
to the problems posed by Rabaglia. Heaney maintains that, even if plaintiff’s
vendors repair the Unit and clear the Unit of trash, the Unit will return to a
state of disrepair due to Rabaglia. The unlawful detainer action does not
disentitle plaintiff to the preliminary injunction. There is no guarantee that Heaney
will be successful in the unlawful detainer action. Moreover, having
demonstrated that mold is in the Unit, plaintiff is not required to wait until
the resolution of the unlawful detainer action to remediate the Unit of mold. Due
to the damp conditions of the Unit, plaintiff must urgently remediate the mold
to ensure that adjacent units and the common area are not damaged from spread
of the mold. Moreover, having demonstrated that Rabaglia has allowed trash and
waste to accumulate in the Unit, attracting rodents and vermin, plaintiff is
not required to wait until the resolution of the unlawful detainer action to
clear out the trash and ensure the health and safety of the residents of the
Complex.
On January 8, 2025, Heaney filed a “supplemental response”
to the OSC, further opposing the issuance of a preliminary injunction. Heaney
argues that the Trust is an indispensable party which plaintiff did not name as
a defendant.
The ex parte order required oppositions to be filed by December
27, 2024. The Court would be well within its discretion to disregard the
supplemental response. (Rule of Court 3.1300(d) [“If the court, in its
discretion, refuses to consider a late filed paper, the minutes or order must
so indicate”].) Even if the Court were to consider the improperly filed
supplemental response, the Court would find Heaney’s argument is without merit.
A trust cannot be sued. It is not a legal entity. “‘A trust ... is simply a
collection of assets and liabilities.’” (Stoltenberg v. Newman (2009)
179 Cal.App.4th 287, 293, quoting Galdjie v. Darwish (2003) 113
Cal.App.4th 1331, 1343.) “The trustee has the power to prosecute or defend
actions, claims, or proceedings for the protection of trust property and of the
trustee in the performance of the trustee's duties.” (Prob. Code § 16249.)
Plaintiff properly sued Heaney as the Trustee of the Trust.
With respect to the balance of harms, based on the current
conditions of the Unit – infested with mold, vermin, and rodents – plaintiff
has shown an immediate need to repair and clean the Unit and effectuate
compliance with the CC&Rs, as proposed by plaintiff through a preliminary
injunction. By contrast, defendants have not demonstrated any harm that would
result from the granting of plaintiff’s proposed preliminary injunction. Even
assuming that there is a danger that the Unit will fall into disrepair after
remediation due to Rabaglia, thereby necessitating further repair and
increasing Heaney’s potential monetary liability, the CC&Rs charge Heaney,
as the Trustee of the Trust that owns the Unit, to ensure Rabaglia’s compliance
with the CC&Rs. (CC&Rs at §§ 7.20, 9.5.) It is thus within Heaney’s
control to minimize any liability from any further disrepair that may be caused
by Rabaglia.
For the foregoing reasons, plaintiff’s request for a
preliminary injunction is GRANTED.