Judge Donald F. Gaffney, Case Wilshire Westmont Homeowners Association v. Winger 2023-05-17 Tentative Ruling

Judge: Donald F. Gaffney, Case: Wilshire Westmont Homeowners Association v. Winger, Date: 2023-05-17 Tentative Ruling

TENTATIVE RULING:

For the reasons set forth below, Plaintiff Wilshire Westmont Homeowners Association’s Order to Show Cause re: Preliminary Injunction is GRANTED. Plaintiff to post an undertaking of $2,500.00.

Standard for Preliminary Injunction

Section 526 of the Code of Civil Procedure authorizes a Court to grant an injunction where (1) “it appears by the complaint that the plaintiff is entitled to the relief demanded,” (2) “the commission or continuance of some act during the litigation would produce … great or irreparable injury to a party to the action,” (3) the challenged act may violate a party’s rights, (4) “pecuniary compensation would not afford adequate relief, (5) “it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief,” (6) “Where the restraint is necessary to prevent a multiplicity of judicial proceedings.” (Code Civ. Proc., § 526, subd. (a).)

The Court may also grant a preliminary injunction “at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exists therefor.” (Code Civ. Proc., § 527, subd. (a).) A trial court evaluates “‘“two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued.”’ [Citation.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109; Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183; Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299.) The latter factor involves consideration of the inadequacy of the other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402; accord, Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177.)

The issuance of a preliminary injunction rests within the sound discretion of the trial court. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) That discretion, however, should be exercised in favor of the party most likely to be injured. (McCoy v. Matich (1954) 128 Cal.App.2d 50, 52.) The purpose of a preliminary injunction is to preserve the status quo until a final determination following a trial. (Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536, 1542, overruled in part on other grounds by Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 353 [whether covenants run with land].)

“On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant’s undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.” (Code Civ. Proc., § 529, subd. (a).) Section 529’s requirement of an undertaking is mandatory. (Griffin v. Lima (1954) 124 Cal.App.2d 697, 700.) The trial court must ensure it sets the “undertaking in an amount sufficient to pay the defendants ‘such damages … as [they] may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.’ [Citation.]” (ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 11.)

Plaintiff Has Established It Will Likely Prevail on the Merits at Trial

Plaintiff’s three causes of action all stem from a plumbing leak Defendants caused, and which they allegedly refuse to repair.

“[A] recorded land use restriction in a common interest development is presumptively reasonable and will not be set aside unless it is found to be arbitrary or violates fundamental public policy. [Citations.] The purpose of the presumption of validity, requiring a challenger to demonstrate unreasonableness, is to promote stability and predictability in condominiums and other common interest developments. [Citations.]” (Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, 120-121; see Civ. Code, § 5975, subds. (a) & (b) [covenants and restrictions in the declaration enforceable by the association against an owner].)

“A nuisance is statutorily defined as anything ‘injurious to health’ or ‘indecent, or offensive to the senses, or an obstruction to the free use of property’ that interferes ‘with the comfortable enjoyment of life or property....’” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542; Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.)

“As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’” (Melton, supra, 183 Cal.App.4th at p. 542.) “The interference must be both substantial and unreasonable.” (Ibid.) “Injunction is a remedy for the torts of trespass and nuisance.” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1243; Code Civ. Proc., § 731; Civ. Code, § 3501.)

“To qualify for declaratory relief under section 1060, plaintiffs were required to show their action (as refined on appeal) presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.’ [Citation.] ‘The “actual controversy” language in ... section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.’ [Citation.] It does not embrace controversies that are ‘conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court.’ [Citation.]” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.)

“A declaratory relief action is an appropriate means to test the enforceability of covenants or servitudes asserted against property.” (Ross v. Harootunian (1967) 257 Cal.App.2d 292, 294.)

Under Article IX, Section 3 of the CC&R’s, Defendants were required to repair and maintain their unit – unit 144C-6. (Declaration of Donalea Melching Bauer, ¶ 2; Exhibits 1-2 to Bauer Declaration.) Under Article VI, Section 2, Defendants were obligated to allow Plaintiff to enter their unit in order to inspect and take any necessary corrective action. (Exhibit 1 to Bauer Declaration.)

Defendants breached these obligations, as they caused a plumbing leak by installing two bathtubs that lacked the proper sealing. These leaks affected not only Defendants’ unit, but also caused, and continues to cause, damage to neighboring units, as well as to the common areas. (Bauer Declaration, ¶¶ 3-5, 11, 13-14; Exhibit 3 to Bauer Declaration.) According to Plaintiff, the leaks continue, and are worsening, and they have resulted in a foul odor, along with mustiness, in the common area. (Bauer Declaration, ¶¶ 11-12, 14.)

Defendants then refused, and failed, to repair the leaks, and they refused, and failed, to allow Plaintiff access to their unit in order to make the repairs. (Bauer Declaration, ¶¶ 4-8, 10-11.)

Based on the foregoing, Plaintiff has established it will likely prevail on its causes of action for: (1) Breach of the Declaration of Covenants, Conditions, and Restrictions, (2) Abatement of Nuisance and Nuisance Per Se, and (3) Declaratory Relief.

Plaintiff Will Suffer Greater Harm Than Defendants

In ruling on a request for a preliminary injunction, the second showing the moving party must make is that “the ‘interim harm’ to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the … injunction is issued.’ [Citation.]” (Integrated Dynamic Solutions, Inc., supra, 6 Cal.App.5th 1178, 1183.) In considering this second factor of interim harm, the Court considers the inadequacy of the other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. (14859 Moorpark Homeowner's Assn., supra, 63 Cal.App.4th 1396, 1402.)

Plaintiff has presented evidence anything short of a preliminary injunction would constitute an inadequate remedy, and it would cause irreparable harm. This is because Defendants have both refused to repair the plumbing leak, and to allow Plaintiff and its contractor access in order to effect the repairs. This has caused the plumbing leak to continue and worsen. (Bauer Declaration, ¶¶ 4, 7-8, 10-14; Exhibit 3 to Bauer Declaration.)

Undertaking

On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant's undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.

(Code of Civil Procedure § 529, subd. (a).)

“The greater the likelihood of the plaintiff prevailing, the less likely a preliminary injunction will have been found to be wrongfully issued. That factor may not be controlling of the amount of the bond, but we consider it relevant.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1062.) In Oiye, the court held the trial court did not abuse its discretion in setting a fairly nominal bond amount of $1,000 where the defendant made no evidentiary showing of his likely damages in the event the preliminary injunction is later determined to have been wrongfully issued. (Ibid.) This was because the defendant remained free to seek an increase in the amount of the bond if he was able to demonstrate the amount of his damages may exceed the bond. (Oiye, supra, 211 Cal.App.4th at p. 1062.)

As in Oiye, Defendants have not made an evidentiary showing of their likely damages in the event the preliminary injunction is later determined to have been wrongfully issued.

Thus, the Court sets the bond at $2,500.00.

Moving party to give notice.