Judge: Melvin D. Sandvig, Case: 23CHCV01889, Date: 2024-01-09 Tentative Ruling
Case Number: 23CHCV01889 Hearing Date: January 9, 2024 Dept: F47
Dept. F47
Date: 1/9/24
Case #23CHCV01889
PRELIMINARY INJUNCTION
Motion filed on 12/13/23.
MOVING PARTY: Plaintiff Terry Mack
RESPONDING PARTY: Defendant Canyon Park Village Owners
Association
RELIEF REQUESTED: A preliminary injunction compelling
Defendant Canyon Park Village Owners Association to promptly take appropriate
action, through its board of directors, to:
A. Investigate and effect necessary maintenance, repairs,
and replacements of the following common area and exclusive-use common area
components:
1. Leaking windows.
2. Water seepage through the
exterior wall and foundation of the Unit 594 garage.
3. The Unit 594 balcony.
4. Roof drainage.
5. Unit 594 roof framing and
drywall at the garage ceiling and walls which have been damaged by water
intrusion caused by broken common area pipe, rodents, and deterioration from
lack of maintenance.
6. Removal of rodents, dead
bees, and honey in the attic area above Unit 594.
7. Cutting back trees adjacent
to Unit 594 to eliminate rodent access to the building roof.
B. Investigate and take enforcement action against
residents’ Rules violations relating to leaving trash items in the area of the
Unit 594 garage door.
C. Issue a key or other access device to Plaintiff for
access to common-area facilities, including but not limited to the pool area.
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out a dispute between Plaintiff Terry
Mack (Plaintiff), the owner of a townhome condominium unit commonly known as
18110 Erik Ct., Unit 594, Canyon Country, California 91387 (Unit 594), which is
part of a residential common interest development operated by Defendant Canyon
Park Village Owners Association (Defendant).
Plaintiff contends that during the five years preceding
the filing of this action, Plaintiff has advised Defendant multiple times
regarding: (1) maintenance and/or repair issues in the common areas which have
caused damage to Unit 594; (2) damage to Plaintiff’s garage door caused by a
Defendant repair person and requested that Defendant replace the garage door;
and (3) other owners and/or residents continuously violating the rules by
discarding large items of personal property in the area of Unit 594’s garage
door which interferes with Plaintiff’s ingress and egress, creates unsightly
conditions, etc. On multiple occasions,
Plaintiff has requested Defendant place signage prohibiting the deposit of such
items and that Defendant investigate who is responsible for such conduct and
take appropriate action against them.
During the five years preceding this action, Plaintiff has also
requested on multiple occasions that Defendant provide Plaintiff with a key or
other device that is needed for access to the community pool area.
Despite Plaintiff’s multiple requests, Plaintiff contends
Defendant has failed and refused to: (1) investigate Plaintiff’s complaints and
has not maintained, repaired, or replaced any of the complained of common area
components that are in need of such maintenance, repair, or replacement; (2)
investigate and take reasonable action to address the issue of trash being left
by other residents in the area of the Unit 594 garage door; (3) provide
Plaintiff with a key or other device that is needed for access to the community
pool area; and (4) to replace the Unit 594 garage door that was damaged by a
Defendant repair person.
Therefore, on 6/28/23, Plaintiff filed this action
against Defendant for: (1) Damages for Breach of CC&Rs, (2) Damages for
Breach of Fiduciary Duty, (3) Damages for Negligence and (4) Injunctive Relief
and Damages for Nuisance. On 8/29/23,
Defendant answered the complaint.
On 12/13/23, Plaintiff filed and electronically served
the instant motion seeking a preliminary injunction compelling Defendant to
promptly take appropriate action, through its board of directors, to:
A. Investigate and effect necessary maintenance, repairs,
and replacements of the following common area and exclusive-use common area
components:
1. Leaking windows.
2. Water seepage through the exterior wall and foundation
of the Unit 594 garage.
3. The Unit 594 balcony.
4. Roof drainage.
5. Unit 594 roof framing and drywall at the garage
ceiling and walls which have been damaged by water intrusion caused by broken
common area pipe, rodents, and deterioration from lack of maintenance.
6. Removal of rodents, dead bees, and honey in the attic
area above Unit 594.
7. Cutting back trees adjacent to Unit 594 to eliminate
rodent access to the building roof.
B. Investigate and take enforcement action against
residents’ Rules violations relating to leaving trash items in the area of the
Unit 594 garage door.
C. Issue a key or other access device to Plaintiff for
access to common-area facilities, including but not limited to the pool area.
ANALYSIS
The electronic service of the motion on 12/13/23 for the 1/9/24
hearing date does not provide the required 16 court days plus 2 court days
notice required (the service is 1 day short).
See CCP 1005(b); CCP 1010.6(a)(3)(B). There is no opposition or other response to
the motion to cure the defect in service.
Even if the motion had been timely served, Plaintiff has
failed to establish that a preliminary injunction is warranted in this case.
The purpose of a preliminary injunction is to preserve
the status quo and prevent irreparable harm pending trial on the merits. White (2003) 30 C4th 528, 554; Costa
Mesa City Employees’ Association (2012) 209 CA4th 298, 305; Continental
Baking Co. (1968) 68 C2d 512, 528; SB Liberty, LLC (2013) 217 CA4th
272, 280.
In ruling on a motion for preliminary injunction, the
court must consider two interrelated factors: (1) the likelihood that the
plaintiff will prevail on the merits at trial and (2) the interim harm that the
plaintiff would be likely to sustain if the injunction were denied as compared
to the harm the defendant would be likely to suffer if the preliminary
injunction were issued. Smith
(2010) 182 CA4th 729, 749; Brown (2019) 34 CA5th 915, 925; Amgen Inc.
(2020) 47 CA5th 716, 731; Shoemaker (1995) 37 CA4th 618, 633; Robbins
(1985) 38 C3d 199, 205.
The motion fails to address the foregoing factors. Additionally, the relief requested would not
preserve the status quo. Rather, it
would mandate certain conduct on the part of Defendant, some of which is
ambiguous so as to create confusion in enforcing the relief (i.e., order
Defendant to investigate certain matters…What constitutes an adequate
investigation? What if Defendant investigates and concludes that no
maintenance or repairs are needed or violation of rules occurred?). Further, the motion fails to establish that
Plaintiff will suffer irreparable harm if relief is not granted pending trial
on the merits. Plaintiff concedes that
the issues presented in the motion have existed for at least 5 years preceding
the filing of this action. (See
Mack Decl. ¶¶7-11).
Plaintiff has also failed to address the issue of
Plaintiff posting an undertaking, if the relief is granted. CCP 529(a) provides:
“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.”
It is not clear how the amount of such undertaking would
be calculated. Plaintiff has not
provided evidence of the cost to undertake all of the maintenance and repair
issues, if it is ultimately determined that such are not the responsibility of
Defendant and Plaintiff was not entitled to the requested relief.
CONCLUSION
The motion is denied.