Judge Ralph C. Hofer, Case Number: 22GDCV00026, Date: 2025-02-14 Tentative Ruling

Judge: Ralph C. Hofer, Case: 22GDCV00026, Date: 2025-02-14 Tentative Ruling

Case Number: 22GDCV00026 Hearing Date: February 14, 2025 Dept: D

TENTATIVE RULING

Calendar: 5

Date: 2/14/2025

Case No: 22 GDCV00026 Trial Date: March 17, 2025

Case Name: Excelsior at the Americana at Brand Homeowners’ Association v. Van Richter

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party: Defendant Paul Van Richter, individually and as trustee of the Paul J

Abramson Trust

Responding Party: Plaintiff Excelsior at the Americana at Brand Homeowners’ Association

RELIEF REQUESTED:

Summary judgment

In the alternative, summary adjudication of each cause of action

CAUSES OF ACTION: from Complaint

1) Breach of Governing Documents

2) Injunction

3) Fraud—Intentional Misrepresentation *

4) Abuse of Process *

*Causes of action stricken with prejudice from Complaint pursuant to order granting special motion to strike on October 7, 2022.

SUMMARY OF FACTS:

Plaintiff Excelsior at the Americana at Brand Homeowners’ Association (Excelsior HOA) alleges that it is a California mutual benefit non-profit corporation which is owned by and composed of its members and owners within the community known as The Excelsior at Americana (Excelsior). Plaintiff alleges that there are 100 owner members, and that defendant Paul Van Richter is the trustee of the Paul J. Abramson Trust, the owner of real property Unit 676 at Excelsior, and a member of Excelsior HOA. Plaintiff alleges that Van Richter resides at the subject unit.

Plaintiff alleges that every condominium unit at the property is governed by the Excelsior HOA Covenants, Conditions and Restrictions (CC&Rs), pursuant to which Excelsior HOA is responsible for repairs of common areas at the property. In 2020, plaintiff completed a major construction defect lawsuit, which included claims for defects and damages related to the master bedroom showers leaking into the adjacent common area walls and sub-floors between residences, deterioration of cast iron pipes due to hydrogen sulfide gas corrosion, and missing fire stopping in the fire rated walls between the residences. The repairs will require the removal and replacement of the master bathroom shower, replacement of the cast iron pipes, and the installation of fireproofing between the residences, which repairs will take place inside all of the residences, and cannot be done solely from the exterior of the residences.

Plaintiff alleges that it has sent notice to the residents concerning a schedule of inspections to take place inside the residences, to be completed November 1-12, 2021, Monday through Friday, lasting about thirty minutes. Van Richter has contacted the reconstruction company to not contact him for access to his unit, has informed Excelsior HOA’s consultants that he had no issues in his residence and the issues were all repaired, which plaintiff alleges is not possible because the problems are located in the common areas and defendant has not obtained approval for construction in his residence as required by the CC&Rs. Defendant’s home, Unit 676, has not been inspected as defendant refused to grant access for inspections, in violation of the CC&Rs section concerning Right of Entry of the Association, and Excelsior HOA seeks an order from the court to defendant to vacate his unit for the duration of inspection and repairs of his unit and that the Excelsior HOA be permitted access to his unit to perform the repairs that are being made at all other units at the Excelsior.

The complaint also alleges causes of action for fraud and abuse of process based on allegations that defendant has filed two small claims complaints, in March of 2021 and November of 2021, in which defendant has falsely represented to the court that the claims had been served on plaintiff. These causes of action were the subject of a special motion to strike which the court heard on October 7, 2022. The motion was granted and the causes of action were ordered stricken with prejudice from the verified complaint.

Defendant Van Richter, individually and as trustee, has filed a cross-complaint, naming plaintiff Excelsior HOA as cross-defendant, alleging that Excelsior HOA has breached the CC&Rs by directing or being compliant in allowing management servicer First Service Residential on May 11, 2020 to terminate all its management duties and services exclusively to Van Richter. The cross-complaint alleges a cause of action for breach of contract, as well as a cause of action for declaratory relief, in which cross-complainant seeks a declaration that Excelsior HOA is in violation of the CC&Rs by continuing to require Van Richter to pay $716.86 per month for residential services such as onsite property management, concierge, janitorial, engineering and security, while Van Richter is being denied any of these services.

Van Richter has sought leave to file a supplemental cross-complaint, which was granted, and on May 13 2024, a supplemental first amended cross-complaint was filed, making additional allegations that in May of 2023, an attorney for Excelsior HOA and its board sent a “members’ status letter” to all homeowners except cross-complainant, with a copy of a lawsuit by Reconstruction Experts, Inc., containing a cause of action for foreclosure on a mechanic’s lien, listing all the homeowners, including cross-complainant. The cross-complaint alleges that Van Richter has sent a letter to Excelsior HOA requesting a defense of the action as provided to the other homeowners, but has had no response.

ANALYSIS:

Procedural

Notice

The opposition argues that the motion was not brought on sufficient notice, because the hearing date was set for February 14, 2025, which was after CCP § 437c(a)(2) was amended effective January 1, 2025 to require 81-days’ notice of a motion for summary judgment.

CCP § 437c(a)(2) at the time the motion was filed and served in November of 2024, required that a motion for summary judgment be brought on 75 days’ notice:

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.”

With respect to the 75-days’notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. See McMahon v. Superior Court (2003, 2nd Dist.) 106 Cal.App.4th 112, 118.

It appears from the papers here that the parties stipulated to the notice period such that eservice was considered personal service, so the notice argument has arguably been waived in light of the stipulation. In any case, the provision of 75-days’ notice appears appropriate given that the motion was filed before the amendment became effective. Both the previous and amended versions of CCP § 437c(u) provide: “For purposes of this section, a change in law does not include a later enacted statute without retroactive application.” There is no argument offered here that the amendments to CCP § 437c apply retroactively. The motion is not be denied as untimely.

Untimely Separate Statement and Unauthorized Sur Reply and Reply to Sur Reply

The opposition also argues that defendant did not file the separate statement in support of the motion until another two days beyond the time period agreed to, and not with the moving papers. Plaintiff argues that accordingly Excelsior HOA did not receive the final version the motion until several days after it had been filed. The court file, in fact, shows the separate statement was not filed with the court until four days later, extremely untimely. This circumstance is not an ideal situation.

It appears that in response to these circumstances, plaintiff has taken it upon itself to file what it designates papers in “Sur Reply,” which are essentially a second opposition to respond to the separate statement’s untimeliness and take more time to prepare opposition. This action has been taken without obtaining advanced leave of court to file such unauthorized papers. Defendant has filed reply papers.

The court is highly concerned that the parties have taken such liberties with the court rules and statutes governing this motion. Nevertheless, given that responses have been made on the merits to each defective pleading, the court reluctantly considers all the papers which have been filed in connection with this motion as of February 6, 2025.

The parties should be aware that the amended statute now imposes further limitations on reply papers, including their content, and in the future the parties are expected to follow that amended language. See CCP § 437c (b)(4) (“The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving or opposing papers.”)

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant Paul Van Richter, individually and as trustee of the Paul J Abramson Trust, seeks summary judgment or summary adjudication of the two remaining causes of action in plaintiff’s complaint, apparently arguing that plaintiff cannot prove an essential element of each of those causes of action, or that defendant can establish a defense that plaintiff did not comply with the governing documents.

First Cause of Action—Breach of Governing Documents

ISSUE 1: This Court should grant summary judgment or summary adjudication as to the First Cause of Action of the COMPLAINT for Breach of Governing Documents – Civil Code 5977 also titled as Failure to Comply with Governing Documents (hereinafter “Breach of Governing Documents – Civil Code 5977”) on the grounds that there is no genuine dispute of material fact that EXCELSIOR had no right to demand entry into VAN RICHTER’s home because it did not comply with the Governing Documents’ requirement of Section 2.8 of the Covenants, Conditions and Restrictions (“CC&Rs”) of first taking a legally valid vote of the board of directors with two thirds of the board authorizing entry into VAN RICHTER’s home and none of the other CC&R sections nor Civil Code sections cited in the COMPLAINT give EXCELSIOR any right to enter VAN RICHTER’s home. As such, EXCELSIOR had no right to demand entry into VAN RICHTER’s home and the First Cause of Action for Breach of Governing Documents – Civil Code 5975 fails as a matter of law.

Civil Code § 5975(a) provides with respect to common interest developments

“(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”

The motion is confusing on the issue to be resolved on summary adjudication here, as the issue is framed as “EXCELSIOR had no right to demand entry into VAN RICHTER’s home because it did not comply with the Governing Documents’ requirement of Section 2.8 of the Covenants, Conditions and Restrictions (“CC&Rs”) of first taking a legally valid vote of the board of directors with two thirds of the board authorizing entry into VAN RICHTER’s home and none of the other CC&R sections nor Civil Code sections cited in the COMPLAINT give EXCELSIOR any right to enter VAN RICHTER’s home.”

The motion accordingly concedes that the first cause of action cites various CC&R sections and Civil Code sections, including CC&Rs sections 5.1.27, 11.1, 11.5.5, and Civil Code section 4785. [RFJN, Ex. A, Verified Complaint, paras. 56-60]. The moving papers do not directly address any of those sections, but appear to argue that the court addressed “some” of those issues in its previous order in connection with a motion for preliminary injunction. [See Motion, citing RFJN, Ex. G]. Any arguments to defeat the relied upon CC&R sections or Civil Code sections are not set forth in the moving papers and no argument is made to establish why any observations in connection with a previous ruling on a different motion would now be considered the law of this case or otherwise defeat the allegations of the first cause of action.

The motion accordingly arguably does not dispose of the entire cause of action, as a great portion of it is not addressed at all. As noted above, CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

To the extent the motion is intended to be a motion to establish an affirmative defense, this is not clearly argued. There is a brief argument that while CC&R section 2.8 is not mentioned in the verified complaint, defendant raised it in his answer, specifically in his Second Affirmative Defense. [See Memorandum, para. 28]. The answer in its denials mentions CC&R section 2.8 in one paragraph. [RFJN, Ex. H, Verified Answer, para. 41]. The Second Affirmative Defense states quite broadly, “Plaintiff’s claims are barred as plaintiff breached the CC&Rs with VAN RICHTER.” [RFJN, Ex. H, Verified Answer, p. 11:5]. There is no mention of the obligations under CC& R section 2.8 in this defense. It is not clear that this defense is sufficiently stated to encompass the current argument.

In any case, assuming that defendant is arguing that this affirmative defense provides a complete defense to every theory of the cause of action, defendant argues that Excelsior HOA cannot pursue a right to enter plaintiff’s home because defendant cannot establish that it complied with the requirements of CC&R section 2.8.

Section 2.8 provides, in pertinent part:

“Right of Entry by the Association. The Association shall have a limited right of entry in and upon all Units, excluding the Residence, for the purpose of inspection, and taking whatever corrective action may be deemed necessary or proper by the Board of Directors, consistent with the provisions of this Declaration. Such entry upon a Unit shall be made, except to effect emergency repairs or other emergency measures, only after three (3) days prior written notice to the Owner of such Unit and after authorization of two-thirds (2/3rds) of the Board of Directors. Nothing contained herein shall be construed to impose any obligation upon the Association to maintain or repair any Unit or improvements required to be maintained or repaired by the Owners. Nothing in this Article 2 shall in any manner limit the right of the Owner to exclusive occupancy and control over such Owner's Unit….”

[RFJN, Ex. K, section 2.8; p. HOA000152]

Defendant argues that although Excelsior HOA has argued that there was a vote of the board of directors to allow access to each unit for the general contractor to perform a video review of each unit, there was no discussion of this issue and no vote in the board of director’s meeting of October 19, 2021 that would allow entry into plaintiff’s unit. This argument is based in part on materials filed by Excelsior HOA in support of a motion for summary judgment which was ultimately withdrawn. [See RFJN, Ex. I]. It is not clear how these materials on a Request for Judicial Notice are properly considered by the court.

In any case, defendant relies on his own declaration, in which he indicates he attended the subject meeting, and there was no vote at the meeting, and plaintiff would have exercised his right to discuss the issue in the open forum, but it was never raised or discussed. [UMF Nos. 9, 10, 13, 14, 18; Van Richter Decl., paras. 7, 8, 10-12]. Defendant also submits evidence that well after the October 19, 2021 board meeting, the minutes from the September 19, 2023 board meeting state that board member Anoosh Bozorgmehr moved to amend the October 19, 2021 minutes to “include that the Board approved access to all units for the purpose of the matterport inspection…” [UMF Nos. 42, 43, and evidence cited, Ex. 9, p. 2]. This motion was seconded by board member Jay Jayaraj, and approved and the minutes were amended. [Id.]

This showing appears to support competing inferences that the vote was not taken at the meeting, as attested by defendant, or was in fact taken, but not properly recorded in the minutes at the time, and this error was later corrected. CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718. Competing inferences are present here.

While plaintiff seems to argue that the position of Excelsior HOA is not credible, as there was nearly a two year lapse before the error in the minutes was caught, and the board members seeking to amend the minutes were not listed as attendees at the original meeting, this would go to the credibility of the witnesses and the respective versions of what occurred, and the weight of the evidence. These are not appropriate determinations for the court to be making on summary adjudication. Triable issues of fact appear on the face of the moving papers. The motion is denied.

In addition, even if the burden had shifted, plaintiff submits evidence showing that plaintiff satisfied both the three-day notice requirement as well as the separate two-thirds vote of the Board of Directors. [Additional Facts Nos. 1-3, and evidence cited, Branscombe Decl., paras. 9, 10, 14-22, Exs. 5-7].

Defendant also appears to make an argument that there is evidence in connection with the vote that it was improperly taken at an executive session, not a regular session of the board. Defendant relies on deposition testimony in which the Excelsior HOA board president, Nancy Branscombe testified that the vote was likely in the executive session. [Ex. 15, Branscombe Depo., pp. 18-22, 26].

Defendant then argues that under Civil Code sections applicable here, there are limited instances when a vote can be conducted in executive session, which do not apply here.

Defendant relies on Civil Code section 4910, under which, with respect to common interest developments, “(a) The board shall not take action on any item of business outside of a board meeting.” Defendant also relies on Civil Code section 4935, which provides, in pertinent part:

“(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 5665.”

It is not clearly argued that the vote here did not concern considering litigation or the formation of the contract to conduct the repairs and thus the inspections.

In any case, in opposition to the motion, plaintiff submits evidence that even if the vote had been taken in an executive session, this action was appropriate. Specifically, plaintiff submits evidence that at the time of the vote the Excelsior HOA had just completed a small claims action with defendant Van Richter, and was aware he was seeking to file another small claims action, which he did. [Branscombe Decl. in Support of Sur-Reply, paras. 3-6]. Branscombe also testifies:

“10. When the Excelsior HOA was considering the Matterport inspection process, it knew that Mr. Van Richter would not cooperate. The Excelsior HOA suspected Mr. Van Richter would obstruct or otherwise impede the Matterport inspection process and thus, began the prospect of considering litigation against him in the event of a dispute over access to his Unit actually occurred.

11.At the Executive Session on October 7, 2021, the Excelsior HOA’s Board of Directors met with the HOA’s legal counsel, to discuss a Unit Access Strategy. A true and correct copy of the October 7, 2021 Executive Session Meeting Minutes is attached hereto as “Exhibit A.”

12.The HOA’s Board of Directors sought to create a Unit Access Strategy precisely because they forsaw “a need to use the court system to obtain an Order to gain access” to Mr. Van Richter’s Unit.

13.Second, the Matterport video inspections were to be taken by the HOA’s reconstruction vendor, Reconstruction Experts, Inc., as part of a Change Order to the Pre-Construction Contract between Reconstruction Experts and the HOA. Therefore, the vote to allow access to all Units in order to take a Matterport video inspection involved matters relating to the formation of contracts with third parties.

[Branscombe Decl. in Support of Sur-Reply, paras. 10-13, Ex. A].

Plaintiff has accordingly raised issues with respect to whether a vote took place in a regular session, or, in the alternative, that if the vote was taken in an executive session, this was appropriate, as in consideration of litigation and/or in connection with the formation of the contract with the reconstruction vendor.

The motion as to the first cause of action accordingly denied.

Second Cause of Action—Injunction

ISSUE 2: This Court should grant summary judgment or summary adjudication as to the Second Cause of Action of the COMPLAINT for Injunction on the grounds that there is no genuine dispute of material fact that VAN RICHTER did not breach the Governing Documents, CC&Rs nor any of the Civil Codes sections cited in the COMPLAINT as EXCELSIOR did not have any right to enter VAN RICHTER’s home. As such, EXCELSIOR’s cause of action for Injunction seeking an injunctive order against VAN RICHTER mandating VAN RICHTER permit immediate access to his home for an inspection fails as a matter of law.

ISSUE 3: This Court should grant summary judgment or summary adjudication as to the Second Cause of Action of the COMPLAINT for Injunction on the grounds that there is no genuine dispute of material fact that none of the sections of the CC&R’s nor Civil Code sections cited in the COMPLAINT required VAN RICHTER to vacate his home. As such EXCELSIOR’s cause of action for Injunction seeking an injunctive order against VAN RICHTER mandating VAN RICHTER vacate his residence upon 30 days’ advance notice for whatever period is necessary to perform repairs in the building that VAN RICHTER’s unit is located fails as a matter of law.

The issues which are framed above appear based on the same argument discussed above concerning Excelsior HOA’s purported lack of right to entry, and defendant argues that since there is no right to entry, the cause of action cannot be established. This argument is rejected for the same reasons stated above.

The motion also briefly argues that plaintiff is unable to establish irreparable injury, actual or threatened, or threatened multiplicity of suits, so that the cause of action for injunction must be dismissed.

Under CCP § 526, an injunction may be granted in cases (a):

“(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) “When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where 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.”

Defendant is evidently arguing that because in March of 2022, defendant was willing to agree to terms and conditions concerning an inspection, and emailed the board of directors, but received no reply, there is no irreparable harm threatened. [UMF No. 27, and evidence cited; RFJN, Ex. D, Ex. 7]. It is not clear why, if defendant is willing to permit inspection and entry into his home for inspection and repairs defendant has not submitted a clear current declaration to that effect.

In any case, plaintiff has submitted evidence which would support a reasonable inference that plaintiff will be able to establish irreparable harm or other conditions for the imposition of an injunction here. Specifically, plaintiff submits a declaration of Excelsior HOA board president Branscombe in which it is observed that defendant has never agreed to the entry as did the other unit owners, but consistently imposed conditions, such as requiring that the inspection could take no longer than 20 minutes, and that defendant “placed other conditions on his offer to allow access. [Branscombe Decl., para. 27, Ex. 12]. It is not surprising that under the circumstances, plaintiff is concerned that without a court order defendant will not fully cooperate in the process, but continue to impose conditions on his compliance. Branscombe also explains the continuing need for the inspection and possible vacating of the premises, and indicates that Excelsior HOA’s budget for reconstruction is limited, and “[t]herefore, each delay and/or obstruction by Mr. Van Richter harmed and continues to harm the HOA.” [Branscombe Decl., paras. 32, 34, 35].

Plaintiff also submits the declaration of the construction manager for Excelsior HOA, Frank Blefari, an expert in general contracting, who is familiar with the project and explains in great detail the construction defects at issue, the work required to be done, and explains that the repairs are necessary for the reconstruction of the Excelsior Building, and that it would be unreasonably difficult, if not physically impossible, to make the approved repairs without access to defendant’s unit. [Blefari Decl., paras. 1-13]. Blefari explains that if the defects are not remedied promptly and properly, they pose a risk of the release of gases, mold and fire risks, and further structural damage to the entire building. [Blefair Decl., paras. 6, 9, 10, 11]. The contractor explains and concludes:

“Based on my experience as a licensed general contractor and my knowledge of the types and severity of the construction defects at the Excelsior Building, if Mr. Van Richter does not allow the Excelsior HOA to make repairs, then the damage from Mr. Van Richer’s Unit could spread and affect the other Units around him.”

[Blefair Decl., paras. 13, 14].

This showing supports a reasonable inference of a threat of great or irreparable harm. Triable issues of material fact have been raised, and the motion as to this cause of action will also be denied.

RULING:

Defendant Paul Van Richter’s Motion for Summary Judgment or in the Alternative Summary Adjudication:

The Court in its discretion reluctantly has considered the untimely separate statement and evidence submitted by moving party, as well as the unauthorized Sur-Reply submitted by opposing party to address the time restraints arising from the untimely submission of moving papers.

Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication:

Motion is DENIED.

Defendant has failed to meet defendant’s initial burden to establish that the cause of action fails on all theories raised, as there is no direct argument concerning several of the CC&Rs and Civil Code sections which are raised in the verified complaint. To the extent the argument is intended to be that all theories are barred by an affirmative defense, this is not fully developed, and the Second Affirmative Defense does not appear to encompass the defense pursued.

Even if this argument were to be considered with respect to the alleged failure of plaintiff to comply with the requirements of CC&Rs Section 2.8, plaintiff in the moving papers has submitted evidence that supports a competing inference that plaintiff complied with the Section. [UMF Nos. 42, 43, and evidence cited]. Summary adjudication is accordingly not properly granted.

Even if defendant had met the initial burden, shifting the burden to plaintiff to raise triable issues of material fact, plaintiff has raised triable issues with respect to whether plaintiff appropriately obtained the board of directors’ approval, either at the regular meeting or at an executive session under permissible circumstances. Specifically, plaintiff submits evidence showing that plaintiff satisfied both the three-day notice requirement as well as the separate two-thirds vote of the Board of Directors. [Additional Facts Nos. 1-3, and evidence cited, Branscombe Decl., paras. 9, 10, 14-22, Exs. 5-7]. Plaintiff also submits evidence supporting a claim that a vote was properly conducted in an executive session, under circumstances permitted under Civil Code section 4935, including the consideration of litigation and the formation of contracts with third parties. Specifically, plaintiff submits evidence that at the time of the vote the Excelsior HOA had just completed a small claims action with defendant Van Richter, and was aware he was seeking to file another small claims action, that the Excelsior HOA began the prospect of considering litigation to prevent the obstruction or impeding of the inspection process, and the use of a court order to gain access to the units, and that the inspections were to be taken by the HOA’s reconstruction vendor, Reconstruction Experts, Inc., as part of a Change Order to the Pre-Construction Contract between Reconstruction Experts and the HOA. [Branscombe Decl. in Support of Sur-Reply, paras. 3-6; 10-13, Ex. A]. Plaintiff accordingly has raised issues with respect to whether a vote took place in a regular session, or, in the alternative, that if the vote was taken in an executive session, this was appropriate, as in consideration of litigation and in connection with the formation of the contract with the reconstruction vendor.

Motion is DENIED.

Summary adjudication of these issues to the extent based on the same argument and evidence above concerning Excelsior HOA’s purported failure to establish right to entry are denied on the same grounds.

The motion accordingly is denied on the same grounds, and based on the same evidence cited in connection with ISSUE 1, above. Defendant has failed to meet its initial burden on this ground, because competing reasonable inferences are raised in the moving papers and because plaintiff in opposition has raised triable issues concerning the propriety of its conduct.

To the extent defendant argues that the conditions for granting an injunction are not satisfied, such as the existence of irreparable harm, the motion is DENIED.

Triable issues of material fact have been raised with respect to whether defendant’s purported willingness to agree to the terms and conditions concerning an inspection eliminates great or irreparable harm. Specifically, plaintiff submits evidence that defendant has not agreed to entry but imposed conditions. [Response to UMF No. 27, and evidence cited; see also Branscombe Decl., para. 27, Ex. 12]. Evidence is also submitted that the delay in permitting access to defendant’s unit threatens and continues to harm the entire HOA, including unrefuted expert evidence that if the defects are not remedied promptly and properly, they pose a risk of the release of gases, mold and fire risks, and further structural damage to the entire building. [Branscombe Decl., paras. 32, 34, 35; Blefari Decl., paras. 1-16].

Defendant Paul Van Richter’s Request for Judicial Notice in Support of Motion for Summary Judgment or in the Alternative Summary Adjudication is GRANTED as to the submitted court records only to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the Court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case, such as orders, findings of fact and conclusions of law, and judgments.)

Defendant Excelsior’s Objections included in its Separate Statement are OVERRULED as not in proper format.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. Department D is now requiring either live or VIDEO appearances, not audio appearances. Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.

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