Katherine Gelber, et al. v. Ayala Tamir, et al.

PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS

 

MOVING PARTY: Plaintiffs Katherine Gelber and Jean Philippe Nesseler

RESPONDING PARTY(S): Defendant En Ville Owners Association, Inc.; Defendants Ayala and Yoav Tamir

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Katherine Gelber and Jean Phillippe Nessler occupy a residential unit within a multi-family condominium complex in Beverly Hills, CA. Defendant En Ville Owners Association, Inc., is the homeowner’s association of the complex. Defendants Ayala and Yoav Tamir own the residential unit directly above Plaintiffs’ unit. 

Plaintiffs allege their unit suffered significant water damage originating from the deck on the Tamir’s Unit and/or the common area beneath the deck. The water infiltration caused and continues to cause damages and mold to Plaintiffs’ unit. Plaintiffs have vacated the unit due to safety concerns, in part because Plaintiff Gelber was pregnant. Plaintiffs allege the Tamir Defendants and Defendant En Ville have failed to undertake the required repairs and refuse to provide the necessary access and/or cooperation with Plaintiffs to cure the ongoing leak. Plaintiffs bring causes of action for (1) & (2) negligence against all Defendants, (3) breach of fiduciary duty against Defendant En Ville, (4) private nuisance against all Defendants, (5) negligence per se against all Defendants, (6) injunctive relief against all Defendants, and (7) breach of contract against all Defendants. 

Plaintiffs filed two separate motions for a preliminary injunction: one directed at Defendant En Ville, and the other directed at the Tamir Defendants. The court continued the first scheduled hearing so that the motions could be heard together on this date. Each Defendant filed oppositions to each motion. Given the related issues between the two motions, the court considers them together.

TENTATIVE RULING:

Plaintiffs’ Motion for a Preliminary Injunction is GRANTED IN PART.  

All Defendants are ordered to permit and cooperate with a reasonable inspection of the Tamir Defendants’ deck and adjacent common areas. This includes allowing direct access through the Tamir Defendants’ unit as may be reasonably necessary to conduct the inspection. Othwerise, the other requests are DENIED WITHOUT PREJUDICE at this time.

The inspection is ordered to take place within 21 days of this Ruling, or as may be otherwise agreed to by the parties.

Plaintiffs to give notice, unless waived.  

DISCUSSION:

Motion for Preliminary Injunction

I. Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527(a).) The burden of proof is on the plaintiff as moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)   

 

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.) Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  (Doe v. Wilson (1997) 57 Cal.App.4th 296, 304.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.) 

 

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. § 529(a); Cal. Rules of Court, rule 3.1150(f); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920.) 

II. Analysis

A. Relief Sought

Plaintiffs move for a preliminary injunction against each Defendant. Plaintiffs seek relief against Defendant En Ville as follows:

(1) ordering En Ville to promptly take all necessary steps required under the applicable Restated Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) to prevent the nuisance (water intrusion in Plaintiffs’ Unit (unit #205, located at 415 South Spalding Drive, Beverly Hills, California 90212)) alleged herein to prevent any further damage to the common areas adjacent to and/or above Plaintiffs’ Unit, and to assure all repairs needed to stop the nuisance (water intrusion in Plaintiffs’ Unit) and to allow Plaintiffs to repair Plaintiffs’ Unit and return to their home; and 

(2) that the Plaintiffs’ Unit is water tested to ensure that the leaks into Plaintiffs’ Unit have been repaired.

(08/18/23 Notice of Motion 2: 6-14.)

Plaintiffs also move for a preliminary injunction against the Tamir Defendants and seek relief as follows:

(2)  the Tamirs are ordered to refrain from making unpermitted repairs on or to the deck at the Tamirs’ Unit;

(3) the Tamirs are ordered to refrain from making the repairs ordered herein with a contractor that is not properly licensed; and

(4) that the Plaintiffs’ Unit is water tested to ensure that the leaks into Plaintiffs’ Unit have been repaired.

(08/31/23 Notice of Motion 2: 6-19.)

B. Background Allegations

Plaintiffs Katherine Gelber and Jean Phillippe Nessler occupy a residential unit in a condominium complex in Beverly Hills. (Compl. ¶ 6.) Defendants Ayala and Yoav Tamir occupy the unit directly above Plaintiffs’ unit. (Id. ¶ 8.) Plaintiffs allege “[f]rom late 2022, and into the 2023 winter season, the Plaintiffs’ Unit endured significant water damage caused by water infiltration originating from the deck on the Tamir’s Unit and/or the common area beneath the deck.” (Id. ¶ 11.) The water caused and continues to cause damage and mold in Plaintiffs’ unit. (Id.) Plaintiffs have vacated the unit due to safety concerns, in part because Plaintiff Gelber was pregnant. (Id.) 

Plaintiffs allege their unit requires substantial repairs. (Id. ¶ 12.) However, they cannot do so until the “cause of the water infiltration from the Tamirs’ Unit and deck is identified and resolved.” (Id.) Defendants allegedly have failed and refused to provide the necessary access and cooperation with Plaintiffs to cure the leak. (Id. ¶ 13.)

Defendant En Ville Owners Association is the Homeowners Association at the subject condominium complex. Plaintiffs allege that Defendant En Ville has also failed to cooperate in repairing the conditions causing the water leak, particularly those that may be coming from the common areas. (Id. ¶ 14.) 

Plaintiffs bring causes of action for (1) & (2) negligence against all Defendants, (3) breach of fiduciary duty against Defendant En Ville, (4) private nuisance against all Defendants, (5) negligence per se against all Defendants, (6) injunctive relief against all Defendants, and (7) breach of contract against all Defendants.

C. Likelihood of Success on the Merits

1. Relief Against En Ville

First, the court focuses on the requested injunctive relief against Defendant En Ville. Plaintiffs present a declaration by Dean Vlahos, a licensed Forensic Architect who inspected Plaintiffs’ property. (Vlahos Decl. ¶ 1.) During his inspection, Vlahos discovered “significant water damage” to Plaintiffs’ unit caused by water “originating from the deck of [Defendants’ unit] and/or the common area beneath the exterior deck of [Defendants’ unit].” (Id. ¶ 4.) Vlahos believes Plaintiffs’ unit will continue to experience water damage until the exterior deck is demolished. (Id. ¶ 10.) 

Plaintiffs contend that Defendant En Ville has an affirmative duty to enter the Tamirs’ Unit and common areas to make the necessary repairs. Plaintiffs rely on Defendant’s Restated Declaration of Covenants, Conditions and Restrictions (the “CC&Rs”). (See Gelber Decl. Exh. D.) 

In its 08/29/2023 opposition, Defendant En Ville “generally supports” Plaintiffs’ motion for injunctive relief. (Opp. 2: 2-3.) Defendant does not dispute the damage or cause of the damage to Plaintiffs’ unit. Defendant contends, however, that there is no legal basis to issue the Preliminary Injunction against En Ville. Rather, Defendant En Ville maintains that under the CC&Rs, it has the discretionary right—but not a duty—to repair the Tamirs’ deck. Defendant asserts it is the Tamirs who have the duty to repair the deck in this matter, and any injunctive relief must be issued against them.  [FN 1]

Defendant En Ville filed a second opposition on 09/14/2023. Defendant again states it “generally supports the relief sought by Plaintiffs,” but continues to dispute that it has any duty to make repairs to the Tamirs’ patio. (Opp. 3: 3.)

The court first turns to the various sections of the CC&Rs discussed by the parties. As an initial matter, the CC&Rs provide that “[r]emedies at law for violation of the Association’s Governing Documents are inadequate and equitable and injunctive relief may be sought and awarded.” (Id. ¶ 11.4.) Therefore, injunctive relief is an appropriate remedy.

The CC&Rs provide that the Association “shall maintain the Common Areas,” defined to include “the entire Development except the separate interests owned by Members.” (Gelber Decl. Exh. D, ¶¶ 4.3, 1.13.) In the event of damage to the Common Areas, the “Association shall cause the damaged Common Area property to be repaired or replaced.” (Id. ¶ 3.11.)

Under section 6.1, “Members [like the Tamir Defendants] shall, at their sole expense, have the duty to maintain, service, waterproof and repair the floors and interior walls of their Balconies Patios, Terraces and Courtyards.” (Id. ¶ 6.1.) “Failure by a Member to maintain a Balcony or Patio shall give the Association the right to repair it in accordance with the notice and repair provisions of these CC&Rs.” (Id. ¶ 6.1(d).) 

“Except for the floor and floor waterproofing, the Association shall have the duty to repair and maintain the exterior surfaces, railings, and structural components of Balconies. Subject to the notice provisions in these CC&Rs under ‘Right of Entry,’ the Association shall have the right to enter upon any Balcony or Patio in connection with any maintenance or construction for which the Association is responsible.” (Id. ¶ 6.2)

Construing the provisions, Defendant has discretion to repair the balcony’s floor and floor waterproofing—but not a mandatory duty to so. But to the extent any damage is being caused by a Common Area or “structural components” of the deck/balcony, then Defendant En Ville would have a duty to maintain those areas. (Id. ¶ 4.3, 6.2.) At this time, an inspection is necessary to determine the cause of the damage before Defendant En Ville can be found to have an affirmative duty to remedy any such damage.

With this in mind, the court now turns to the requested injunctive relief against the Tamir Defendants.

2. Relief Against the Tamirs

The Tamir Defendants filed an opposition to Plaintiffs’ motion directed toward Defendant En Ville on 08/29/2023, and then another opposition to the motion directed toward them on 09/14/2023. 

Defendants have not presented any evidence disputing Plaintiff’s allegations. However, they dispute all elements that would justify a preliminary injunction and deny that such relief is necessary at this time. In particular, the Tamir Defendants assert it currently remains “unknown what the specific cause of the leak is,” and therefore it is “premature and unnecessary” to grant the relief requested. (09/14/23 Opp. 2: 11-12.) Defendants suggest any ruling be deferred until Defendants have opportunity to conduct discovery and investigate the cause of the leaks. Finally, Defendants contend no good cause exists because “defense counsel for the Tamirs has commenced communications with all parties to schedule an all-party inspection.” (Id. 6: 14-16.)

As discussed above, the Tamirs have a duty to “maintain, service, waterproof, and repair the floors and interior walls of their Balconies Patios, Terraces, and Courtyards[;]” and are also “responsible for the cost of repairing any damage to (i) their own property, (ii) the property of others, and (iii) the Common Areas resulting from water intrusion from the Balconies or Patios appurtenant to their Units due to waterproofing failures for which the Member is responsible.” (Gelber Decl., Exh. D, ¶¶ 6.1, 6.11.) The CC&Rs expressly allow “equitable and injunctive relief” to enforce these provisions. (Id. ¶ 11.4.) Therefore, if the Tamir Defendants’ balcony is causing the water intrusion, there is no debate that Defendants are responsible for any damages to Plaintiffs’ property. 

Considering these facts—and the undisputed water damage to Plaintiffs’ unit—the likelihood the plaintiff will prevail on the merits of its case at trial appears high. This court also appreciates the urgency of the issue as the winter season approaches. 

D. Balance of the Harms

Next, the court will balance the harm to Plaintiff if the motion were not granted with the harm to Defendant En Ville if the motion were granted.  

Based on the apparently undisputed evidence, Plaintiffs’ unit has been significantly damaged by a water intrusion originating at Defendants’ balcony (or possibly the common area below that balcony). This damage has forced Plaintiffs to vacate the unit with their young children. The harm is ongoing. Despite continued efforts by Plaintiffs, neither En Ville nor the Tamirs have remedied the issue. Thus, absent court intervention, Plaintiffs face significant continued harm to their unit, and remain displaced from their home.

In comparison, the harm to En Ville if the request for injunctive relief is granted is minimal. At most, Defendant will need to cooperate with an inspection and undertake repairs to the common areas that may be contributing to the water intrusion. However, under the CC&Rs, Defendants have an express duty to remedy these common areas. (See Gelber Decl., Exh. D, ¶¶ 4.3, 1.13, 3.11.) Defendant has identified no other harm if the motion was granted. 

Similarly, the harm to the Tamir Defendants is minimal. Defendants will need to permit entry, inspection, and repairs. But under the CC&Rs, Defendants have a duty to undertake those actions. 

Thus, considering a balance of the harms, this court concludes the balance strongly shifts in favor of granting the motion for a preliminary injunction. 

E. Disposition

Considering the above, the court concludes the appropriate first step toward injunctive relief is to order an inspection of areas potentially causing the damage to Plaintiffs’ unit. Once an inspection takes place, the court and the parties will be in better position to address any affirmative duties, if any, to repair the deck or common areas.

IT IS SO ORDERED.

Dated:   September 28, 2023 ___________________________________