Judge: Randy Rhodes, Case: 19CHCV00398, Date: 2022-12-22 Tentative Ruling
Case Number: 19CHCV00398 Hearing Date: December 22, 2022 Dept: F51
Dept. F-51
Date: 12/22/22
Case #19CHCV00398
SUMMARY JUDGMENT
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Motion filed on 10/7/22.
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MOVING PARTY: Defendant Tamara Nazaretyan
RESPONDING PARTY: Plaintiff Aldea Community
Association, a California non-profit mutual benefit corporation
NOTICE: ok¿
RELIEF REQUESTED: An order granting summary
judgment in favor of Defendant Tamara Nazaretyan and against Plaintiff Aldea Community Association.
TENTATIVE RULING: The motion is denied.
EVIDENTIARY
OBJECTIONS:
Plaintiff’s evidentiary objections to the deposition transcript of
Dale Rodin, numbered 2 and 5, are sustained.
Plaintiff’s evidentiary objections to the declaration of Aram
Touloumdjian, numbered 4–6, 11–13, 18, 23–24, 26, 28, 31–32, 35, 39, and 45,
are sustained. Plaintiff’s evidentiary objection number 21 is overruled.
Plaintiff’s evidentiary objections to the declaration of Defendant,
numbered 1, 4, 7, 13–14, 17–18, 21, 28–29, 32–33, 35, 37–38, and 40, are
sustained.
Plaintiff’s evidentiary objections to the declaration of Harry
Safarian, numbered 1 and 3, are sustained.
Defendant’s evidentiary objections to the declaration of Patrick
Malone, numbered 1, 8, 11, 12, and 17, are sustained.
BACKGROUND
Plaintiff is the governing homeowners’ association for the
condominium project in which Defendant owns a condominium unit. (FAC ¶¶ 1, 7.)
This action arises out of Plaintiff’s allegation that Defendant breached the
association’s Covenants, Conditions, & Restrictions (“CC&Rs”) by
allowing her “openly violent, mentally unstable son,” Garnik Hakobyan
(“Garnik”) to reside at her unit. (FAC ¶ 11.) Plaintiff alleges that Garnik
“recently engaged in violent, disruptive, frightening, and offensive behavior
designed to harass, physically harm, and threaten physical harm to other
owners, their families, residents, employees, and guests at the [premises], all
of which constitute violations of the Governing Documents, including, but not
limited to the CC&Rs and a private nuisance.” (Ibid.)
Specifically, on 4/11/19, Garnik experienced a
psychological episode which, according to Plaintiff, caused him to physically
assault a fellow resident of the community. (FAC ¶¶ 18, 19.) Following the
incident, Plaintiff held a Board meeting with Defendant on 5/8/19, requesting
that she prohibit her son from accessing the community. (FAC ¶ 13.) “At the
hearing, given the Defendant’s continued refusal to agree to the Board’s
requests, the Board reached the following resolutions: (1) authorizing
Plaintiff’s law firm to initiate this action against Defendant; (2) deeming
Garnik a nuisance and an immediate risk to the health and safety of the
Association’s members, residents, employees and guests, in breach of CC&Rs;
(3) restricting Garnik from the Association’s common areas; and (4) imposing a
fine of one hundred dollars ($100.00) for the violation of the CC&Rs.” (Ibid.)
On 5/14/19, Plaintiff filed its complaint, alleging against
Defendant four causes of action: (1) Breach of Covenants, Conditions, &
Restrictions; (2) Injunctive Relief; (3) Declaratory Relief; and (4) Nuisance.
On 5/20/19, the Court granted Plaintiff a temporary
restraining order preventing Garnik from entering the premises. On 6/3/19, the
Court granted Plaintiff a preliminary injunction preventing Garnik from using
the common areas of the premises, except to enter and exit Defendant’s unit.
On 7/2/19, Plaintiff filed its first amended complaint
(“FAC”). On 8/1/19, Defendant filed her answer. On 10/7/22, Defendant filed the instant motion to for
summary judgment. On 12/8/22, Plaintiff filed its opposition and evidentiary
objections. On 12/16/22, Defendant filed her reply and evidentiary objections.
Under Code of
Civil Procedure section 1005, subdivision (b), “all reply papers [shall be
filed with the court and a copy served on each party] at least five court days
before the hearing.” The Court observes that Defendant’s reply papers were
filed and served one court day late under Code of Civil Procedure section 1005,
subdivision (b). Defendant is advised to take note of the filing deadlines
under the statute, as future filings made past the statutory deadlines may
result in the Court declining to consider the late-filed papers at the hearing.
ANALYSIS
The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party cannot show evidentiary support for a pleading or claim and to
enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c)
“requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 381–382.)
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519–1520.)
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 that cause of action or a defense
thereto.
To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th
151, 163.) Courts “liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor
of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
1. Breach of CC&Rs
Plaintiff’s first cause of action alleges that Defendant breached the
association’s CC&Rs. The parties dispute the legal standard applicable to
this cause of action. Defendant frames this cause of action as a breach of
contract, which requires the following elements: “(1) the
existence of the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to the
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
821; Def.’s MSJ, 7:23–26.) Plaintiff argues in opposition that the CC&Rs
are not contractual terms, but equitable servitudes creating obligations on
land enforceable in equity. (Pl.’s Opp., 6:13–14.)
The Court agrees
with Defendant’s interpretation of the CC&Rs, particularly where the
operative pleading in this action alleges the breach under Civil Code section
5975, which directs courts to enforce CC&Rs as equitable servitudes “unless
unreasonable.” (Civ. Code § 5975, subd. (a); FAC ¶ 21.) Moreover, it is
well-settled that CC&Rs create equitable servitudes on the land, for which
the usual remedy is injunctive relief. (6 Cal. Real Est. § 16:1 (4th ed.).)
Here, the
CC&Rs state, in relevant part:
“No Owner may (i) permit or cause anything to be done or kept
on the Properties … which may … obstruct or interfere with the rights of other
Owners, or (ii) commit or permit any nuisance thereon or violate any law. Each
Owner shall comply with all requirements of all Governing Authorities and with
all other laws regarding occupancy and use of a Lot or Condominium. Each Owner
is accountable to the Association and other Owners for the conduct of persons
residing in or visiting the Owner's Lot or Condominium. Any damage to the
Association Property, personal property of the Association, or property of
another Owner caused by such persons sha11 be repaired at the sole expense of
the Owner of the Lot or Condominium where such persons are residing or
visiting.”
(Ex. A to FAC, §
7.11.)
Defendant bases
her argument on the contention that she never “permitted or caused her son to
have a psychotic episode” as stated in the CC&Rs. (Def.’s MSJ, 8:12–14.)
Plaintiff argues in opposition that express permission to violate the CC&Rs
is not required to find a breach of this provision – “each owner is accountable
to the Association and other Owners for the conduct of persons residing in or
visiting that Owner’s unit.” (Pl.’s Opp., 7:13–15; Ex. A to FAC, § 7.11.)
“Permission is implied by allowing the person whose conduct is in question to
reside in or visit the unit.” (Pl.’s Opp., 7:17–18.)
Defendant does
not dispute the applicability of this provision, which would attribute
responsibility of Garnik’s alleged breach to her, but argues that here, neither
she nor Garnik engaged in intentional conduct that would implicate the
provision. (Def.’s Reply, 4:4–5.) However, Defendant’s argument is undercut by
her own characterization of the 4/11/19 incident as a “suicide attempt,” which
the Court considers an intentional act, as opposed to an accidental one. (Def.’s
Reply, 8:13.)
Defendant
further argues that her payment of cleanup costs for the property damage caused
by Garnik on 4/11/19 shows her compliance with the terms of the CC&Rs, and
“as a result, she cannot be deemed to have breached it.” (Def.’s MSJ, 8:20–21.)
As Plaintiff observes, this argument is immaterial and incidental to the breach
alleged in the FAC, which is Garnik’s conduct as a resident of Defendant’s
unit. (Pl.’s Opp., 8:20–23.)
Plaintiff
further asserts that even if “permission” under Defendant’s interpretation was
required, there is a triable issue of fact as to whether Defendant gave Garnik
“implied permission” to violate the CC&Rs by permitting him to live in her
condominium unit and granting him “unfettered access to the Common Area.”
(Pl.’s Opp., 7:27–8:2.)
Defendant has
not met her initial burden to establish a defense that shows that no triable issue
of material facts exists as to whether she breached her obligations under the
CC&Rs. Accordingly, the Court denies Defendant’s motion as to Plaintiff’s
first cause of action.
2. Injunctive Relief
Plaintiff’s second cause of action seeks injunctive relief. “Injunctive
relief is a remedy, not a cause of action[, …] for certain torts or wrongful
acts of a defendant where a damage remedy is inadequate.” (City of South
Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.)
As such, Plaintiff argues that Defendant cannot move for summary judgment to
this remedy because it is not a cause of action, affirmative defense, or claim
for damages to which a party may move for summary adjudication under Code of
Civil Procedure section 437c, subdivision (f)(1). (Pl.’s Opp. 9:20–23.)
Defendant interprets Plaintiff’s argument as a concession directing the Court to
grant summary adjudication as to the issue of injunctive relief. (Def.’s Reply,
5:5–12.)
The Court rejects both parties’ arguments, and finds that California
courts have consistently considered causes of action for injunctive relief in
summary judgment proceedings. (See, e.g., Shamsian v. Atlantic
Richfield Co. (2003) 107 Cal.App.4th 967; Art Movers, Inc. v. Ni West,
Inc. (1992) 3 Cal.App.4th 640.) Here, Defendant argues that no triable
issue exists as to Plaintiff’s entitlement to injunctive relief, because beyond
speculation, there is no evidence that the harmful conduct alleged is likely to
reoccur. (Def.’s MSJ, 15:10–14.) In opposition, Plaintiff similarly argues that
there is no evidence showing that the harmful conduct alleged has been
voluntarily terminated, and Defendant’s argument that no future harm will occur
is equally speculative. (Pl.’s Opp., 11:9–20.)
In consideration of both parties’ arguments, the Court finds that a
triable issue of material fact exists as to the potential for future harm
caused by Defendant’s alleged breach of the CC&Rs. Accordingly, Defendant’s
motion as to Plaintiff’s first cause of action is denied.
3. Declaratory Relief
Plaintiff’s third
cause of action is for declaratory relief. A party may bring an action for
declaratory relief to determine the enforceability of equitable restrictions (Code
Civ. Proc. § 1060; Nahrstedt v. Lakeside Village Condominium Assn.
(1994) 8 Cal.4th 361, 382.) “Declaratory relief operates prospectively and
there is no basis for declaratory relief where only past wrongs are involved.”
(Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280, 295.)
Defendant argues
that plaintiff’s claim for declaratory relief is not prospective in nature, but
seeks only to address Garnik’s wrongdoing during the 4/11/19 incident. (Def.’s
MSJ, 13:22–23.) Plaintiff rejects this argument, maintaining that it seeks a
“determination of rights and obligations under the governing documents … to
establish that the conduct alleged, to the extent it did happen and may happen
again, is violative of the governing documents and what steps, if any, must be
taken to prevent a similar occurrence.” (Pl.’s Reply, 13:4–7.)
In consideration of both parties’ arguments, the Court finds that a
triable issue of material fact exists as to the enforceability of the CC&Rs
and the future rights and thereunder. Accordingly, Defendant’s motion as to
Plaintiff’s third cause of action is denied.
4. Nuisance
Plaintiff’s fourth and final cause of action is for nuisance. The
statutory definition of nuisance includes “anything which is … an obstruction
to the free use of property, so as to interfere with the comfortable enjoyment
of life or property.” (Civ. Code 3479.) A defendant's activity must be
substantial, and “of such a nature, duration or amount as to constitute
unreasonable interference with the use and enjoyment of the land.” (San
Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)
Here, Defendant argues that Plaintiff purports to claim that Garnik’s
existence constitutes a nuisance. (Def.’s MSJ, 11:16–21.) Defendant further
maintains that she did not personally engage in any conduct which would
constitute a nuisance. (Id. at 12:4–5.) However, the FAC explicitly
alleges that it is Garnik’s conduct during the 4/11/19 incident, for which
Defendant is allegedly responsible under the CC&Rs as set forth above, that
gives rise to its cause of action for nuisance. (FAC ¶¶ 35–36.) As Plaintiff
observes, it is undisputed that the 4/11/19 incident occurred, wherein Garnik
allegedly assaulted a fellow resident of the property. (FAC ¶¶ 18, 19.)
Defendant further argues that there can be no liability for nuisance
where, as here, an act was entirely accidental. (Def.’s Reply, 4:20–5:2.)
Additionally, Defendant seems to argue that Plaintiff’s cause of action for
nuisance necessarily fails because the 4/11/19 was “entirely unforeseeable.”
(Def.’s MSJ, 12:5–7.) However, as Plaintiff observes, foreseeability is not a
factor in a nuisance cause of action. (Pl.’s Opp., 14:7 – 8.) Nevertheless,
these two additional arguments would raise triable issues of material fact as
to whether Garnik’s conduct was intentional or accidental, and whether such
conduct was foreseeable given the evidence of his prior hospitalizations and
history of his condition. (Id., 14:8–15.)
The Court finds
that Defendant has not met her initial burden to negate an essential element of
Plaintiff’s nuisance claim, to show that no triable issue of material facts
exists as to whether Garnik’s conduct, for which she assumed responsibility
under the CC&Rs, constitutes a nuisance. Accordingly, the Court denies
Defendant’s motion as to Plaintiff’s fourth cause of action.
CONCLUSION
Defendant’s motion is denied.