Judge: Ralph C. Hofer, Case: 25NNCV02204, Date: 2025-05-09 Tentative Ruling

Case Number: 25NNCV02204    Hearing Date: May 9, 2025    Dept: D

TENTATIVE RULING

Calendar:    7  
Date:          05/09/2025  
Case No: 25 NNCV02204 Trial Date: None Set 
Case Name: Edward Feigelstock, a Co Trustee of the Fegelstock Family Trust v. Presidential Terrace Homeowners Corporation, et al. 

PRELIMINARY INJUNCTION

Moving Party:              Plaintiff Edward Feigelstock, a Co Trustee of the Feigelstock Family
 Trust  
Responding Party:      Defendant Presidential Terrace Homeowners Corporation      

RELIEF REQUESTED:
Preliminary injunction:
(1) to void an election of directors held on April 3, 2025 for election of directors and proposed amendment to the CC&Rs to Remove a Soundproofing Requirement for Flooring
(2) for the removal of defendant Yevgeniy Rozinskiy as a director of defendant Presidential Terrace Homeowners Corporation
(3) that defendant Rozinskiy be prevented from running for reelection for a time prescribed by the court
(4) that the Association be enjoined from attempting to amend the CC&Rs to adopt, waive, or amend the soundproofing requirement below 45 dB FIIC 
(5) that the Association be enjoined from amending the soundproofing requirement in the CC&Rs with a vote of less than sixty-seven percent of affirmative votes by Owners
(6) for an order to appoint in the interim the remaining two candidates that submitted for the April 3, 2025 election

SUMMARY OF FACTS:
Plaintiff Edward Feigelstock brings this action against defendant Presidential Terrace Homeowners Corporation dba Presidential Terrace Homeowners Association (the Association) and defendant Yevgeniy Rozinskiy, an officer and director of the Association since at least April of 2011, on behalf of himself as an Owner and Member of the Association and on behalf of Members and Owners of the Association to enforce the governing documents and restrictions contained in the Association’s recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs). 

Plaintiff alleges that the project for the Association has 20 units, and according to its Certificate of Occupancy is required to comply with the current building codes for California and the applicable requirements of the Municipal Code of Los Angeles, including requirements for a minimum of 45 dB FIIC (field impact insulation class) for floor to ceiling soundproofing for residential spaces with habitable space below.   Plaintiff alleges that as part of the CC&Rs as amended and restated by a vote of the Members of the Association and recorded in April of 2011, Section 10.3 (c) of the CC&Rs requires that all flooring have a minimum insulation and soundproofing level of 52 dB FIIC.    

Plaintiff alleges that in July of 2024 a sound test was performed between plaintiff’s unit and the unit above to determine whether the flooring and acoustic insulation met the architectural design and requirements of Section 10.3 (c) of the CC&Rs, and the sound test results ranged from FIIC 37 dB to FIIC 44 dB, all well below the 52 dB requirement.  In August of 2024, plaintiff submitted the sound test results to the Association and did not receive any response from the Association as to how it would enforce the relevant section of the CC&Rs.  

Plaintiff alleges that on September 3, 2024, plaintiff attended a board meeting that did not contain any agenda items or notice of agenda items, to raise security concerns concerning stolen mail, and that at the meeting defendant Rozinskiy suggested to the other directors and officers that the Association should waive enforcement of Section 10.3 (c) of the CC&Rs, and replace it with a standard requiring all hard floors to have half-inch cork as an underlayment.  In addition, all flooring currently installed in any unit would be grandfathered, even if that flooring violated the current or amended Section 10.3 (c) or had no acoustic treatment whatsoever.  

The board evidently at that meeting voted not to enforce Section 10.3 (c) as suggested and to propose and send out for balloting a proposed amendment to remove the 52dB soundproofing requirement.  Plaintiff alleges that despite knowledge that Associations must adhere to proper notice and procedures, and that the September 3, 2024 meeting did not have any agenda in the notice which violates the Davis Stirling Act, defendants sent out balloting materials regarding the proposed amendment the board had adopted on September 3, 2024.  Those materials were accompanied by a letter from the Law Office of Jeanne McDonald stating that an acoustical expert had reported it was impossible to achieve the 52dB FIIC soundproofing level, so that every unit with flooring replaced since the CC&Rs were adopted in 2011 was in violation and no one could currently change out their flooring without violating the CC&Rs, which plaintiff alleges is a false statement and no valid expert opinion has been submitted to support this contention. 

Plaintiff alleges that plaintiff sent requests for resolution and notice of election defects to the Association, and then a valid petition to recall defendant Rozinskiy.  In October of 2024, the Association agreed to cancel the improper election.  Plaintiff alleges that as of the filing of the complaint, it has been over 170 days since plaintiff submitted the recall petition and the election to recall Rozinskiy has still not been held, well over the maximum 150 days allowable under California law. 

It is also alleged that the Association has wrongly notified plaintiff he was in violation of the CC&Rs rental cap, and threatened to impose fines unless plaintiff began eviction proceedings on the family member who resided in the unit, and that this constituted knowingly, selectively and bad faith enforcement of the CC&Rs for defendant Rozinskiy’s personal reasons, in abuse of his authority, as the rental cap had never been enforced on family members of an owner.  Plaintiff alleges that in December of 2024, counsel for the Association indicated that the Association acknowledged that plaintiff’s unit was “no longer in violation,” but reserved its right to pursue enforcement and kept this threat hanging over the head of plaintiff. 

It is also alleged that the Association without following the proper procedure attempted to void portions of the election rules without proper notice, and also has continued to err in its election procedures, including providing non-compliant ballot materials with conflicting instructions, basing the election to amend the CC&Rs on a false premise, conducting an election that does not appear impartial, and refusing to comply with the Davis Stirling Act by having the votes counted in-person to ensure that Members can witness the counting and tabulation to ensure fairness and accuracy of the outcome of elections. 

Plaintiff filed the complaint on April 2, 2025, along with an ex parte application for a Temporary Restraining Order (TRO) to restrain the Association from holding an upcoming election on April 3, 2025 for election of Directors and a Proposed Amendment to the CC&Rs to Remove a Soundproofing Requirement for Flooring. 

The application for TRO was heard on April 3, 2025, and was denied on the ground of lack of service.  The application was continued to May 9, 2025.   

On April 8, 2025, plaintiff filed this motion for a preliminary injunction, indicating that the election had been conducted on April 3, 2025, and seeking to enjoin defendants with respect to certain aspects of the outcome of the election, and other matters.  Plaintiff that date also filed a First Amended Verified Complaint, adding allegations concerning the April 3, 2025 election. 

The FAC, like the verified complaint, alleges causes of action for breach of equitable servitudes, breach of fiduciary duties, breach of statutory duties under the Davis Stirling Act, right to inspect records, intentional misrepresentation, negligent misrepresentation, constructive fraud, defamation, breach of implied good faith and fair dealing, removal of director, and declaratory judgment.    
 
ANALYSIS:
Under CCP § 526, an injunction may be granted in cases (a)(1) in which “it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief ...consists in restraining... the act complained of;” (2) “when it appears by the complaint or affidavits that the commission... of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action;”  (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;” or (6) “where the restraint is necessary to prevent a multiplicity of judicial proceedings.”   

 
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.

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. 


With respect to mandatory injunctions, the Second District has observed:
“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].)”
Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625. 

The motion here initially appears to seek to enjoin the Association from conducting an election.   However, the Declaration of Edward Feigelstock submitted in support of the motion indicates that the election took place on April 3, 2025.  [E. Feigelstock Decl., para. 38].  

The opposition submits evidence including the Ballot Record prepared by an outside party, HOA Election Team, which shows the Ballot Date of April 3, 2025, that 16 ballots were received by mail, and that double-blind envelopes were used to prevent observers and the election inspector from being able to correlate any ballot with the related voter.  The Ballot Record reports the results that (1) the proposed recall of board member Zhenya Rozinskiy failed to pass, with 7 yes votes and 9 no votes, (2) Barbara Rudd and Zhenya Rozinskiy were elected to the board, with 10 votes for Rudd, 9 votes for Rozinskiy, and 7 votes for Ed Feigelstock, and (3) the proposed amendment to the CC&Rs passed with 13 yes votes, and 3 no votes.  [McDonald Decl., para. 37, Ex. M].  

The opposition argues that the election already has occurred, and the relief sought is moot, and plaintiff failed to revise his moving papers to provide the court with this new information or amend the motion so that plaintiff is only seeking relief which is obtainable.   Defendants argue that because the election is complete, there is no live controversy requiring judicial intervention and no effective relief the court can grant.  Defendants cite to Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574–1575, in which the court of appeal found the trial court had erred in adjudicating claims regarding the validity of resolutions governing a construction project once the project was complete, observed that “a case that presents a true controversy at its inception becomes moot if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character.”  Wilson & Wilson, at 1573, quotation omitted.   The court in this case cannot now stop the election from occurring.  

Plaintiff in the reply argues that the matter is not moot as the election may be voided under statute and seems to argue that what plaintiff seeks is not to entirely void the election but that Rudd be temporarily appointed as a director until another election is held, and that defendant Rozinskiy be removed as Director and President of the Association.  In the conclusion of the reply, plaintiff requests that the April 3, 2025 election be voided “to remove Defendant Rozinskiy,” and to “enjoin the Association from allowing residents to be subjected to noise levels that are in violation of California law and Los Angeles Municipal Code.”  There is also a request that defendants’ attorney, Ms. McDonald, be disqualified from representing both defendants.  This disqualification order is not noticed in the motion or mentioned until the reply and will not be considered by the court.  The reply clarifies that plaintiff is not by this motion seeking to have the court appoint plaintiff as a director.   

Overall, it is not clear what is being sought here and the court is not inclined to grant relief based on such uncertainty, which may give rise to notice and due process issues.    

To the extent plaintiff now seeks to declare the election invalid, plaintiff seeks not to preserve the status quo, but to impose a mandatory preliminary injunction invalidating the election until a judgment can be entered in this matter on the merits.   This request is subject to a heightened burden of proof, as discussed above. 

In Butt v. State of California, (1992) 4 Cal.4th 668, 677, the California Supreme Court set the following criteria in connection with preliminary injunction applications under subdivision (a) (1):
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.”

With respect to the likelihood of prevailing on the merits, plaintiff argues that he is likely to prevail on the merits, as the Association failed to follow the election rules, has predicated the removal of the CC&R’s soundproofing requirements on a false premise, and defendant Rozinskiy has abused his authority. 

Plaintiff relies on Civil Code section 5145 (a), which provides:
“(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date that the inspector or inspectors of elections notifies the board and membership of the election results or the cause of action accrues, whichever is later. If a member establishes, by a preponderance of the evidence, that the election procedures of this article, or the adoption of and adherence to rules provided by Article 5 (commencing with Section 4340) of Chapter 3, were not followed, a court shall void any results of the election unless the association establishes, by a preponderance of the evidence, that the association's noncompliance with this article or the election operating rules did not affect the results of the election. The findings of the court shall be stated in writing as part of the record.”

Plaintiff argues that the election procedures were not followed because the Association failed to set a physical location for the meeting but only provided a zoom link in the meeting notice and balloting materials. 

Plaintiff relies on Civil Code section 5120, which provides, in pertinent part:
“(a) All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector or inspectors of elections, in public at a properly noticed open meeting of the board or members. Any candidate or other member of the association may witness the counting and tabulation of the votes. A person, including a member of the association or an employee of the management company, shall not open or otherwise review any ballot before the time and place at which the ballots are counted and tabulated. The inspector or inspectors of elections, or the designee of the inspector or inspectors of elections, may verify the member's information and signature on the outer envelope prior to the meeting at which ballots are tabulated. Once a secret ballot is received by the inspector or inspectors of elections, it shall be irrevocable.”

Plaintiff relies on plaintiff’s declaration in which it is stated that on April 3, 2025, the Association held a fully virtual meeting to count the ballots for directors and to remove the soundproofing requirement of the CC&Rs, and that due to the ballot counting being done remotely via teleconference, it was impossible to see any information on the balloting materials to confirm their accuracy.  [E. Feigelstock Decl., paras. 38, 39]. 

  The opposition concedes that there was in this case the absence of an in-person ballot counting location, and that the Board was aware of the problem, “but by then this lawsuit had already been filed,” the Board was been provided a copy of the ex parte application for a TRO, and that “based on the fact that Plaintiff was already challenging virtually everything the HOA had done, the Board decided to proceed with the vote since the fact that owners were not given the opportunity to attend the meeting in a room with one of the directors would have had zero effect on the outcome of the voting.”  [McDonald Decl., para. 39]  

The Association attorney indicates that the inspector of elections, Dan Breeden, owner of HOA Election Team, followed appropriate processes, “opened the election envelopes during a remote video conference and the votes were properly counted.”  [McDonald Decl., para. 36, 37].  The opposition argues that this situation is a case for a finding that any irregularities did not effect the outcome of the election, as permitted under Civil Code section 5120. 

The opposition does cite a case in support of the argument that minor irregularities are recognized under the statute as not violative where they did not effect the result, Trevillyan v. Vista Point Ridge HOA (2021) 62 Cal.App. 5th 148, 160, which the court was unable to locate, and the reply has likewise argued plaintiff could not locate.   The case accordingly was not considered by the court. 

In any case, the moving papers and reply argue repeatedly that injunctive relief is available in the case of election irregularities but make little acknowledgment that this motion seeks the extraordinary pre-trial remedy of a preliminary injunction, issued before a full opportunity for development and presentation of facts, and, in this case, a mandatory injunction to make a significant change in the status quo.  The showing of a probability of prevailing is not sufficiently strong here. 

To the extent plaintiff appears to seek to enforce the soundproofing requirement in the CC&Rs, it appears that plaintiff is seeking to enforce a CC&R which has been amended by the election, so this relief is not available until there is a determination that the election was not valid such that the version of the CC&R prior to the amendment can be enforced by a member of the Association.  
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 CC&R sought to be enforced is not being sought to be enforced in its current form, as amended by the recent election, and is improperly pursued on this motion.  

Moreover, as noted above, to obtain preliminary injunctive relief, a party must show not only a probability of prevailing, but that the relative interim harm involved would favor the imposition of a preliminary injunction.   

The moving papers in connection with the purported election defects makes no clear argument that the relative interim harms would favor a preliminary injunction being issued while these issues are ultimately resolved through trial.  In connection with plaintiff’s apparent attempt to enforce the CC&Rs, plaintiff argues that the Association’s attempts to allow violations of standards for noise levels would undermine the health and safety of Members and subject them to noise levels which are not compliant with California law and the local municipal code.  There is no evidence submitted, however, which would show that the election has resulted in any higher noise levels which are harming plaintiff, a unit occupant, or any other member of the Association. 

The opposition, in fact, submits evidence that the unit above plaintiff’s unit is currently vacant, so the unit apparently is not being subject to noise issues.  Defendants submit a declaration which states that the upstairs unit, “has remained vacant since June of 2024 and never re-occupied…”  [McDonald Decl., para. 8].  The evidence also includes a statement, not disputed, noting that the owners of plaintiff’s unit, plaintiff and his wife, do not reside in the unit.  [McDonald Decl., para. 27].  It would appear that plaintiff accordingly is currently not being subjected to any heightened or threatened heightened noise levels.   

Plaintiff’s evidence in support of the motion, in fact, includes plaintiff’s declaration in which he confirms that his son resides in plaintiff’s unit, and plaintiff does not.  [E. Feigelstock Decl., para. 19].   There does not appear to be any interim harm at all on this ground if a preliminary injunction is not granted.  

The motion appears to primarily argue that the interim harm would consist of defendant Rozinskiy remaining on the board.  It would appear that this argument is based on Rozinskiy allegedly introducing the proposed amendment to remove section 10.3 of the CC&Rs and to waive enforcement of the decibel requirement in order to further his own interests, as his two rental units were not in compliance with the CC&Rs.  Plaintiff relies on plaintiff’s declaration, in which he describes that defendant introduced a motion stating that the two units he rents out have laminate and half-inch cork flooring and that he had received noise complaints and believed that his units were not compliant with the CC&Rs.   [E. Feigelstock Decl., para. 10].  Plaintiff also argues that the Association, through its counsel McDonald, misrepresented that it was impossible to achieve the CC&R 52 dB soundproofing level.  [E. Feigelstock Decl., para. 13, Ex. 6].   It is not clear that the conduct alleged would give rise to the type of harm to be enjoined by a preliminary injunction.  In addition, to the extent the motion may be seeking removal of a director who has just been re-elected and who also defeated a recall, it would appear that such affirmative removal should be more clearly noticed, and, as argued in the opposition, to show a conflict of interest requires the presentation of evidence of a material financial benefit or concealment, which do not exist here.  See Harvey v. The Landing HOA (2008) 162 Cal.App.4th 809, 824.  Corporations Code § 7223 gives courts authority to “remove from office any director in case of fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation or breach of any duty arising as a result of Section 7238 and may bar from reelection any director so removed for a period prescribed by the court.”   Conduct rising to this level has not been established here. 

The fraud, dishonesty and abuse of authority here appear dependent upon a representation by counsel for the Association, not defendant Rozinskiy, based on a report from Venaklasen & Associates, provided to the Association by plaintiff’s counsel from plaintiff, in which it was evidently stated:
“All assemblies failed to meet the State of California requirements for impact and sound transmission control. Additionally, none of the assemblies met the 12500 Huston St. CC&R requirements for impact sound transmission. Since floors have no effect on the airborne sound isolation, all of the other floors in the building will perform similarly and will not meet the Code or the HOA CC&Rs for airborne or impact sound isolation. … The limitations of this floor ceiling system is not related to the floor installation, but by other elements in the floor ceiling assembly that are not controlled by the Unit 201 Owner. … [A]ny hard surface floor installed with a warranty is not anticipated to meet the HOA requirements.”
[McDonald Decl., para. 26, Ex. G].   

The alleged misrepresentation was based on a source provided by plaintiff, and reasonably interpreted to conclude that the floors in the building would not be compliant with the CC&Rs requirement.  This situation does not appear to amount to fraud.  

In any case, again, interim harm would be required to be established, and it would appear that the harm at issue would arise from the noise levels, when no harm is evidently being currently suffered, or threatened, and to the extent there appears to be a broader argument that Rozinskiy is acting in his own self-interest and fraudulently, and that this continuing pattern must be stopped, it is not clear what other actions are being threatened or appear to necessitate a preliminary injunction.  To the extent there is an argument that the Board selectively has been enforcing a rental cap provision of the CC&Rs against plaintiff, for example, the moving papers concede that this issue has been resolved as plaintiff’s son is now a co-trustee of the owner of the unit.  [E. Feigelstock Decl., para. 22, 23].   
 
It would appear plaintiff has established no interim harm at all if a preliminary injunction is not issued while this matter proceeds to a trial on the merits.   

Under the circumstances, entitlement to a preliminary injunction has not been established.  The motion will be denied in its entirety.  

RULING:
Motion for Preliminary Injunction to Void Election and Removal of Director is DENIED.  

Request for Judicial Notice of Recorded Real Property Deeds in Support of Motion for Preliminary Injunction is GRANTED to the extent permitted by Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App.4th 256, 265 (disapproved of on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919).  The Court has noted the objection filed by defendants.  The Court takes judicial notice that the subject documents were recorded and the dates they were recorded.  The Court also takes judicial notice of the contents of the documents, not for the truth of the matters asserted, but to the extent that the contents provide notice and/or are consistent with statutory requirements and for the legal effect of the operative language.  

Objections to Declaration of Charles Feigelstock are OVERRULED. 

Objections to Declaration of Edward Feigelstock are OVERRULED.

Objection to Declaration of Jeanne H. McDonald in Support of Opposition to Preliminary Injunction:  Objection to paragraph 27 on page 8, beginning “The Levinsons planned” through “onerous demands,” is SUSTAINED.   Objection to balance of the paragraph and all other objections are OVERRULED.   


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