Judge Ralph C. Hofer, Case 22GDCV00284 2023-05-05 Tentative Ruling

Preliminary injunction ordering that defendants Verdugo Villas Owners Association, Beven & Brock, and all persons acting in concert with them, cease operating or arranging to operate the condominium’s water heater at a sound level that is above the permitted levels allowed by the Glendale Municipal Code of 35 dBA.

Plaintiffs Meher Der Ohanessian, Ari Der Ohanessian and Lusya Der Ohanessian allege that plaintiffs Ari Der Ohanessian and Lusya Der Ohanessian are tenants of a condominium owned by Meher Der Ohanessian, that defendant Verdugo Villas Owners Association (Association) is the governing body of the Verdugo Villas (Villas), the complex of condominiums in which plaintiffs’ unit is located, and that defendant Beven & Brock is the general manager of the Villas. Plaintiffs allege that by virtue of being an owner of his condominium, defendant Meher Der Ohanassian is a member of the Association, and that the Association, the Villas and the condominium occupants are governed by the Association’s Covenants, Conditions and Restrictions (CC&Rs).

The operative complaint, the First Amended Complaint (FAC), alleges that the CC&Rs prohibit, among other things, offensive activities or action which might be or become an annoyance or nuisance to occupants within the Villas, or interfere with the quiet enjoyment of occupants, and also permits a member to have the right upon request to inspect Association records.

Plaintiffs allege that their unit sits above the location of a boiler room, which houses a hot water heater that supplies water to plaintiffs’ unit, and to other units in the Villas. Historically, there were no noises coming from the boiler room, but somewhat recently, noises during the day and in the middle of the night began coming from the boiler room, which plaintiffs believe are coming from the water heater in the boiler room. Plaintiffs allege that the noises are interfering with their quiet use and enjoyment of their unit.

The FAC also alleges that defendants are in the planning stages to replace the water heater with a new water heater servicing the same units, and plaintiffs have noticed that defendants have installed holes in the vicinity of the water heater, which plaintiffs believe are for the venting of the new water heater. Plaintiffs allege they are concerned that the new water heater be quieter than the noises now coming from the water heater, and are also concerned that carbon dioxide or other pollutants which may emanate from the venting of the new water heater may be injurious to health and safety of the occupants of plaintiffs’ unit and to others.

Plaintiffs allege that to address these concerns, pursuant to Civil Code section 5210 plaintiffs requested that defendants provide plaintiffs records concerning the new water heater contract, but the time period for receipt of the records has passed and plaintiffs have not received the requested records.

It is also alleged that defendants have caused other conditions to occur which have adversely affected plaintiffs, including permitting the use of a clean-up blower in the underground parking structure which kicks up dust and debris which remains airborne for a considerable amount of time, failing to perform repair, restoration, or mold detection in connection with water damage to plaintiffs’ unit and another unit, failing to maintain the parking structure so that water has leaked onto and damaged plaintiff’s car, and permitting people using the pool just outside of plaintiffs’ unit to gather in excessive numbers, make excessive noise and stay for unreasonable lengths of time.

(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.

An application for a preliminary injunction is considered a motion procedure, and must be supported by affidavits or declarations, or a verified complaint, which provide evidentiary facts under CCP § 2009. CCP section 527(a) (“A preliminary injunction may be granted 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 exist therefor.”) See also Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 149-150. The burden is on the party seeking injunctive relief “to show all elements necessary to support issuance of a preliminary injunction.” O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.

Granting or denying a preliminary injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion. Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458. Such a remedy is intended to preserve the status quo until a full trial on a permanent injunction may be conducted. Stewart v. Superior Court of San Diego County (1893) 100 Cal. 543, 545.

An injunction which necessarily contemplates a change in the relative positions or rights of the parties is mandatory, and faces a higher burden of persuasion. See In re Donovan (1949) 94 Cal.App.2d 399, 410. The current motion seeks a change in the positions of the parties, in effect, that defendants cease operating the currently operating water heater in a manner that causes excessive noise. This demand will essentially require that defendants either cause the existing water heater to be repaired, replace it, or insulate the boiler room with additional material to reduce sound levels, any of which would be an affirmative act which would change the status quo.

“Where, as here, the preliminary injunction mandates an affirmative act that changes the status quo, we scrutinize it even more closely for abuse of discretion. 'The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts. A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.' " (Board of Supervisors v. McMahon (1990) 219 Cal. App. 3d 286, 295 [268 Cal. Rptr. 219], fn. omitted.) The granting of a mandatory injunction pending trial " 'is not permitted except in extreme cases where the right thereto is clearly established.' " (Ibid., quoting Hagen v. Beth (1897) 118 Cal. 330, 331 [50 P. 425].)”

The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant used its property (ownership is not required) in violation of the courses of conduct proscribed in Civil Code § 3479 (including conduct offensive to the senses or an obstruction to the free use of the property so as to interfere with the comfortable enjoyment of life or property); separate and ongoing acts by defendant constituting nuisance; and past and future damages. Kafka v. Bozio (1923) 191 Cal.746; Alonso v. Hills (1950) 95 Cal. App.2d 778; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668.

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

To claim a private nuisance, plaintiffs must establish an interference which is “substantial and unreasonable,” and must show special injury different in kind than that suffered by the general public. See Oliver v. AT & T Wireless Services (1999) 76 Cal.App.4th 521, 534; quoting Koll-Irvine Center Property Owners Assn v. County of Orange 24 Cal.App.4th 1041. This special injury can include emotional and physical symptoms resulting from the substandard condition of a dwelling. See Smith v. David (1981) 120 Cal.App.3d 101,113.

Plaintiffs rely on Chase v. Wizmann (2021) 71 Cal.App.5th 244, in which the Second District affirmed a trial court’s granting of a preliminary injunction requiring defendants to relocate air conditioning and pool equipment to the opposite side of their property due to the noise made by those machines when operated under the bedroom window of plaintiffs, defendants’ neighbors. The trial court found that plaintiffs had submitted sufficient evidence to show they were likely to win at trial on the claim that the machines’ noise was “‘injurious to health,’ ‘indecent or offensive to the senses,’ or ‘interfere[s] with the comfortable enjoyment of life or property’ ” under Civil Code section 3479.” Chase, at 251. The trial court found that this condition of the property was true even though there were certain combinations of operations of the machines which did not violate the municipal code noise levels applicable in the neighborhood.

“the evidence ‘strongly favors granting the injunction. The only harm defendants have shown would occur from ordering to move the machines would be financial.... Any harm to them could be remedied after trial. Denying the injunction, meanwhile, would result in plaintiffs continuing to regularly suffer from offensive noise that interferes with the enjoyment of their home and wellbeing.’”

The Second District found that the trial court had not abused its discretion in granting the preliminary injunction, rejecting defendants’ contention that a nuisance could not be established where equipment noise did not violate the municipal code prohibitions, and finding that the record contained substantial evidence to support the existence of a nuisance, noting that “under California Law, the testimony of a single witness, even a party, may alone constitute substantial evidence.” Chase, at 257, citing In re Marriage of Mix (1974) 14 Cal.3d 604, 614.

“The record thus contains substantial evidence of near-constant equipment noise invading Chase's property at all hours, mostly at decibel levels in violation of LAMC section 112.02, subdivision (a). Reasonable persons of normal sensibilities would find this to be an unreasonable amount and duration of noise near their bedroom window and in their yard. And the damage from the constant noise interference described by Chase was substantial, reasonably affecting Chase's everyday life and use and comfortable enjoyment of the property by depriving him from rest, sleep, opening windows, and freely using the balcony or outdoors of the property. Viewing the facts in the light most favorable to Chase, the evidence supports the trial court's conclusion that Chase was likely to prevail at trial.”

The Second District also found the trial court had not abused its discretion in concluding that the balance of harms favored the issuance of the preliminary injunction, despite arguments that the noise violations were minor and controllable and less burdensome alternatives were available, finding that the record reflected “endemic noise issues” at defendants’ property, and “insufficient response by [defendant] and his short-term tenants to Chase’s equipment noise concerns.”

Plaintiffs here submit the declaration of plaintiff Ari Der Ohanessian, who indicates that he and his wife and four-year-old daughter are the current tenants of the subject unit, owned by plaintiff’s father, plaintiff Merher Der Ohanessian. [Ohanessian Decl., paras. 2, 4]. The declaration indicates that in November of 2021 issues with the water heater began when a temporary unit was installed in a room in the parking garage directly below plaintiffs’ unit, and the water heater began to make constant noise throughout the day and night. [Ohanessian Decl., para. 6]. The declaration indicates that the noise fluctuates throughout the day and night depending on how much the water heater is being used, and that when it first turns on after a long period of inactivity it makes a loud startling start-up sound, which has woken plaintiff and his wife from sleep and that his daughter is often startled by the noise and has to be comforted. [Ohanessian Decl., para. 6]. Ohanessian testifies that at other times the water heater makes a constant binding/grinding sound for a few minutes at a time, occurring periodically throughout the day and night, which noise, “has become unbearable to deal with on a daily basis.” [Ohanessian Decl., para. 7]. Plaintiff indicates he has made “many complaints to the homeowners association and the management company to no avail,” and has also complained to the company that installed the temporary water heater. [Ohanessian Decl., para. 8].

Plaintiffs have also submitted the declaration and written report of a general contractor, and inspector, who has inspected the installation of the water heater, and reported that the water heater was not properly installed, and also reported hearing an “abnormally loud sound coming from the direction of the mechanical room under the living space of Mr. Ohanessian’s residence.” [O’Brallahan Decl., paras. 5, 6]. The report indicates that there are issues with the system of exhaust in the temporary water heater, a problem with the gas connection, and questions concerning the circles evidently drawn in connection with plans for installation of a permanent water heater. [O’Brallahan Decl., Ex. 1, Site Investigation Findings, paras. 3-5]. While there is no recommendation concerning repair of the water heater to address the noise issues, the report recommends, “Have the sound level inside the residence checked by an appropriate decibel sensing device (with the proper procedure) or have the sound level check [sic] by a professional.” [Ex. 1, Recommendations, para. 1].

Plaintiffs also submit the declaration of an acoustical consultant specializing in noise and vibration control, John LoVerde, who is an expert in the field of acoustics, and who, through his company Veneklasen Associates, Inc., has analyzed the noise level in plaintiffs’ unit with respect to the water heater. [LoVerde Decl., paras. 2-6]. He has prepared a report on the impact noise from the hot water heater on the unit, and has found that there is clearly audible sound that can be heard in the unit as a result of the start-up noise generated by the water heater that is present and audible 5 to 30 minutes when the boiler system has demand, and that the level of sound emanating from the water heater is in violation of the Glendale Municipal Code. [LoVerde Decl., paras. 6, 7].

According to the Los Angeles Municipal Code, Section 112.02 states that “It shall be unlawful for any person, within any zone of the city to operate any air conditioning, refrigeration or heating equipment for any residence or other structure or to operate any pumping, filtering or heating equipment for any pool or reservoir in such manner as to create any noise which would cause the noise level on the premises of any other occupied property or if a condominium, apartment house, duplex, or attached business, within any adjoining unit to exceed the ambient noise level by more than five (5) decibels.”

The Glendale Municipal Code, in a similar manner, states in Section 8.36.050, “Where the actual ambient is less than the presumed ambient, the actual ambient shall control and any noise in excess of the actual ambient, plus five (5) dBA, shall be a violation.” The code also specifies in Section 8.36.040 that the presumed interior noise standards for residential properties shall be 45 dBA at nighttime (10:00 pm to 7:00 am) and 55 dBA at all other times.

The report then indicates that measurements were taken over two days in June of 2022 with a sound level meter, and the measurements show that the water heater start up noise raised the ambient noise level in the unit by more than 5 dBA, in violation of the LA Municipal Code section, and also that the levels exceed the dBA level in violation of the Glendale Municipal Code. [Report, pages 1-2, 3.0].

“I note that there are strategies that can be employed to lower the noise level from both of these systems into the unit such as moving the equipment to another location, changing the type of equipment, completing a repair of the unit; vibration isolation of the unit; adding materials to reduce the sound level to the unit.”

Defendants argue in opposition that by seeking the preliminary injunction, plaintiffs seek to acquire leverage in their nuisance suit by depriving the residents of the condominium complex of hot water. Defendants argue that the present water heater was installed as an emergency repair when the prior water heater failed, and was intended to be temporary but when Ari Ohanessian voiced concerns regarding the placement of a new water heater system’s vents, the project was paused. [Bloomer Decl., para. 4]. Defendants argue that plaintiffs have failed to engage in a good faith meet and confer process to discuss solutions to the noise issues, and that the Association needs time to consider options. There is no legal authority cited for the necessity for plaintiffs to meet and confer, and plaintiffs have submitted a declaration indicating that they have complained on more than one occasion. [Ohanessian Decl., para. 8].

The opposition indicates that as the new plans were being made for a permanent installment the Association was informed by their vendor hired to install the water heater that Ari Ohanessian called their office, verbally assaulted their pregnant employee so that she had to go home early due to concerns for her health, and the vendor has informed the Association that for this reason, they will not proceed with the new installation until all plans are finalized so that there will be no further dispute or harassment by plaintiffs. [Bloomer Decl., para. 5]. This suggests that the Association was aware of plaintiffs’ concerns about the current water heater.

Defendant argues that plaintiffs seek to require the Association to make costly, time consuming and invasive changes to the water heating system, after plaintiffs created the conditions that caused the delay. Defendants also question the expert’s report concerning the decibel levels, but do not submit any expert evaluation of the data or conclusions and have not filed evidentiary objections.

Defendants also argue that this case is distinguishable from Chase, as one plaintiff in that matter was a senior citizen with health conditions requiring rest and a full night’s sleep, and that the equipment in Chase was non-essential pool and air conditioning equipment, in contrast to the essential water heater involved here, which, if shut down or removed, would create habitability issues at the complex.

Defendants submit the declaration of a professional mechanical engineer who states that she has inspected the water heater and the plans for the installation of a new system, and states, “It is not possible to install the proposed water heater system in the location where the current water heater system is,” that “[i]t is inherent that the current system will make noise.” [Pandian Decl., paras. 4, 5].

“The only ways to potentially reduce noise would be to make a costly replacement of the water heater or to core a hole through the exterior wall of the water heater closet to install an air intake vent for the existing water heater. These potential options are not guaranteed to reduce the noise experience in the Plaintiffs unit.”

The opposition appears to misperceive what plaintiffs are seeking by the preliminary injunction, as it does not appear plaintiffs are requesting that the water heater be shut off so that the residents would have no hot water. As argued in the reply, plaintiffs seek to have defendants mitigate the intrusiveness of the noise from the water heater, not to stop using the existing system or to expedite the installation of the new system.

It would appear that this could be accomplished by first making the repair suggested by defendant’s expert, which is not stated to be costly (the expert states that replacement of the water heater would be costly) or, as urged in the reply, by taking reasonable measures to muffle the sound, such as by adding insulation.

Under the circumstances, it appears that the relative harm to defendants in taking steps to reduce the noise would not be significant, and could be reimbursed in monetary recovery if the injunction is found to have been wrongly issued, while the continuing harm to plaintiffs is significant with respect to interrupting their sleep and subjecting them to continuing exposure to noise in violation of levels set by code to avoid such intrusion and harm, and threats to safety and health.

Under CCP § 529 (a), if the court grants an injunction it “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.”

“It is now well settled that reasonable counsel fees and expenses incurred in successfully procuring a final decision dissolving the injunction are recoverable as ‘damages’ within the meaning of the language of the undertaking, to the extent that those fees are for services that relate to such dissolution.”

“Thus, in calculating the amount of the undertaking to be required in this case, the trial court should have considered at least (1) the profits to be lost by the defendants from the elimination of the vast majority of their existing customers, and (2) the attorney’s fees and expenses to be incurred in either prosecuting an appeal of the preliminary injunction, or defending at trial against those causes of action upon which the preliminary injunctive relief had been granted.”

Here, it is not clear what the expense would be for the Assocation to attempt the suggested repair of the existing water heater by coring a hole through the exterior wall of the water heater closet to install an air intake vent. This issue will be discussed at the hearing. It would appear that such a repair would be relatively simple, and with the proper tools and experience would take a brief amount of time to attempt. This could likely be done for $1,000.00. It is also not clear what the expense would be to add insulation, but such a modification also would appear to be possible for approximately $1,000.00. Assuming both are necessary, the HOA’s expenses/loss would be approximately $2,000.00.

With respect to the attorney’s fees and costs to defend against the claim upon which the injunction will be issued, that is, the claim of private nuisance, the costs would probably involve written discovery, the depositions of plaintiffs, a HOA representative and two experts, and a trial. This could require roughly 100 hours of attorney time at a reasonable rate of $300 per hour, for fees in the neighborhood of $30,000. The total bond should be roughly $32,000, but the court believes a bond of $30,000 would be sufficient.

Plaintiffs have presented facts which establish a probability of prevailing on a claim that the noise emanating from the existing temporary water heater has created a private nuisance with respect to plaintiffs’ unit, the right to enjoin the conduct has been clearly established, and the evidence strongly favors granting an injunction.

The Court further finds that the harm to plaintiffs if the injunction is not granted (continuing harm from the operation of the water heater at decibel levels above those permitted by municipal code enactments designed to prevent harm to health and safety) is greater than the harm to defendants if it is not (loss of use of money which can be recompensed by monetary recovery or against an injunction bond).

May 19, 2023 (following second Friday). (See CCP section 529 (“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….”) In determining the amount of the undertaking, the “trial court’s function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14. The damage includes expenses and attorneys’ fees incurred in successfully procuring a final decision dissolving the injunction. Russell v. United Pacific Ins. Co. (1963) 214 Cal.App.3d 78, 88-89; Abba Rubber Co., supra, 235 Cal.App.3d at p. 16. Here, the court estimates it will take approximately 100 hours @ the approximate rate of $300 an hour in attorney’s fees (total $30,000) to defend against the cause of action upon which the preliminary injunction is based through trial. The court further estimates defendants will incur the costs to effect suggested repair and to install insulation to reduce the noise level in the approximate sum of $2,000 prior to proceeding to trial. Accordingly, the court sets the sum of the bond at $30,000 on the basis that the attorney hours estimate may be overstated.