Judge: Michael E. Whitaker, Case: 24SMCV03807, Date: 2024-09-06 Tentative Ruling

Case Number: 24SMCV03807    Hearing Date: September 6, 2024    Dept: 207

TENTATIVE RULING

MOTION

On August 7, 2024, Plaintiff West Knoll Townhouse Homeowners Association, Inc. (“Plaintiff”) filed suit against Defendant Jonathan L. Simmons (“Defendant”) alleging two causes of action for (1) breach of covenant (“CC&Rs”) and (2) Declaratory Relief, stemming from a dispute concerning Defendant’s alleged refusal to grant Plaintiff access to Defendant’s townhouse unit to conduct plumbing leak and environmental remediation repairs stemming from a plumbing leak originating from Plaintiff’s unit.

Plaintiff now applies ex parte for a temporary restraining order and an order to show cause why a preliminary injunction should not issue, granting Plaintiff immediate access to the property “to complete environmental remediation and emergency plumbing related work, including without limitation to remove hazardous materials from the Property and any other items located on the Property that prevent performance of emergency plumbing repairs.”

The Court has not yet received an opposition at the time this tentative ruling was posted.

ANALYSIS

            “An applicant [for ex parte relief] must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.”  (Cal. Rules of Court, rule 3.1202(c).) 

            Here, Plaintiff has provided the Declaration of Shawn Zahedi, one of Plaintiff’s board members, which indicates as follows:

2. In or around the end of May of 2024, the Association noticed a continued leak in the stairway and parking garage underneath the Property located at 8601 West Knoll Drive, Unit 4, West Hollywood, CA 90069 (“Subject Property”) which is owned by Defendant JONATHAN L. SIMMONS. Water was found to be leaking into the upper portion of the parking garage and into the storage area for a Unit owner.

3. When the leak continued, the Association retained Flood Brothers Plumbing, Inc. (“Flood Brothers”) to conduct an inspection of the parking garage and the leak. Flood Brothers inspected the Association’s parking garage on or about June 5, 2024. Flood Brothers found that a “live active emergency water leak” existed that appeared to originate from the Subject Property.

4. The Association continued with attempts to access the Unit but was unsuccessful in doing so. The Association has reached out to Code Compliance for the City of West Hollywood. On or about June 7, 2024, a representative of the City’s Code Compliance department, Edward Espinoza, knocked on the door of the Subject Property, and left after no response was received. Mr. Espinoza indicated that he would be sending a letter to Defendant and would begin the citation process if no response was received. The Association has continued with attempts to follow up with Code Compliance but the status of the matter is unknown.

5. On or about June 20th, 2024, Flood Brothers attempted to inspect the Subject Property after gaining entry via a locksmith in the presence of the Sheriff’s department. Flood Brothers refused to enter the Subject Property due to the amount of hazardous materials blocking the entrance, and the smell of mold and/or mildew. Flood Brothers advised the Association that environmental remediation in the Unit was necessary before they would enter to perform plumbing repairs. Photographs of the condition of the Property observed on June 20th are attached hereto as Exhibit “5.”

6. Despite continued efforts to follow up with the Code Compliance Department for the City of West Hollywood to address the condition of the Subject Property, Code Compliance has offered no direction or status of the matter. On July 18, 2024 Code Compliance indicated that the Association should pursue obtaining a Court Order to access the Unit.

7. On or about July 22, 2024, Flood Brothers conducted an additional inspection of the parking garage and the Subject Property to assess the active water leak. Flood Brothers was unable to access the Subject Property, again in part due to the debris and hazardous materials prohibiting access outside of Owner’s Unit. Flood Brother’s inspection found that an “active emergency water leak” was present.

(Zahedi Decl. ¶¶ 2-7.)

            Although Plaintiff characterizes the water leak as an “emergency,” Plaintiff also indicates the leak has been ongoing for several months.  (Zahedi Decl. ¶ 2.)  As such, Plaintiff has not demonstrated why the relief sought could not be requested via a regular noticed motion.

            Plaintiff has also provided the Declaration of Giovani Longo, CEO of Flood Brothers Plumbing, the company that inspected the source of the leak.  Attached as Exhibit 1 to the Longo Declaration is a June 5, 2024 invoice, which notes, “Based on our initial evaluation there will be significant secondary damage to the property (Unit #4) and potentially other adjacent units if this matter is not properly addressed within 72 hours.” 

            Attached as Exhibit 2 to the Longo Declaration is a June 21, 2024 invoice which indicates, “We were unable to properly inspect and/or diagnose the apparent active plumbing leak due to the amount of debris and hazardous material/waste currently barricading the entrance” but “Based on our initial evaluation there will be significant secondary damage to the property (Unit #4) and potentially other adjacent units if this matter is not properly addressed as soon as possible.” 

Thus, the harm caused by the ongoing leak appears to be repairable.  Further, despite the June 5 warning that repairs should be made within 72 hours to prevent “significant secondary damage to the property and potentially other units,” Plaintiff delayed several months before filing this action, and delayed an additional month between filing the complaint and requesting ex parte relief.  As such, at this juncture, it is unclear what irreparable harm or imminent danger will result from the additional time it takes a regularly noticed motion to be heard.  Further underscoring the lack of immediate danger at this juncture is the fact that the City of West Hollywood’s Code Compliance Department has also not acted with any urgency. 

CONCLUSION AND ORDER

Therefore, having failed to make an affirmative factual showing of irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief, Plaintiff’s ex parte application for a temporary restraining order and order to show cause why a preliminary injunction should not issue is denied. 

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  September 6, 2024                                     ____Judge of the Superior Court