Kelly v. St. Denis Homeowners Assn. CA2/5

Filed 2/8/21 Kelly v. St. Denis Homeowners Assn. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PATRICIA WARD KELLY, B295067
Cross-complainant and (Los Angeles County
Respondent, Super. Ct. No. BC704060)
v.
ST. DENIS HOMEOWNERS
ASSOCIATION,
Cross-defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Bryant-Deason, Judge. Affirmed.
Veatch Carlson and Serena L. Nervez for Cross-defendant
and Appellant.
Kushner Carlson, PC, James D. Decker and Shelby L.
Daws for Cross-complainant and Respondent.
__________________________
Cross-defendant St. Denis Homeowners Association (HOA)
appeals from the trial court’s grant of cross-complainant Patricia
Kelly’s (Kelly) application for a preliminary injunction enjoining
the HOA from removing trees next to Kelly’s townhouse. The
HOA contends the trial court abused its discretion in granting
the preliminary injunction because the trial court’s findings in
the HOA’s favor precluded Kelly from showing a likelihood of
prevailing on the merits of her claims. The HOA also argues that
trial court erred in finding the interim harm to Kelly outweighed
the harm to the HOA. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kelly is the owner of a townhouse that is one of 21
residential units within the HOA. This action began in April
2018 when the HOA first sued Kelly alleging causes of action for
breach of the covenants, conditions and restrictions (CC&Rs) and
nuisance.1 The specific allegations in the complaint—which
sought to enjoin Kelly from, among other things, obstructing the
common area and maintaining an unused HVAC on the roof—are
not before us.
In June 2018, the HOA Board of Directors (Board) informed
the homeowners that the Board had approved a bid for removing
all trees and plants from the common area planters in order to
waterproof the planters. The stated reason for the project was
that water was leaking from the planters into the HOA’s
subterranean garage. The Board also approved an arborist’s
recommendations for planting new plants in the planters.
1 Kelly was sued individually and in her capacity as trustee
of the Patricia W. Kelly Trust. The trust is not a party to the
appeal.
2
In July 2018, Kelly filed a cross-complaint based on the
Board’s proposal to remove the trees from planters directly
outside of Kelly’s unit. The cross-complaint alleged (1) breach of
contract based on the Board’s incurring expenses for “capital
improvements” (removal of the trees) without approval of a
majority of the HOA as required by the CC&Rs, (2) nuisance
alleging the removal of the trees would interfere with her
enjoyment of her property, (3) declaratory relief that the proposed
removal of the trees violated the CC&Rs, and (4) violation of the
Open Meeting Act based on the Board’s taking “action on the”
leak repair plan in closed meetings that Kelly was not allowed to
attend. Kelly sought preliminary and permanent injunctions to
enjoin the HOA from removing the trees.
On August 14, 2018, Kelly filed an ex parte application for
a temporary restraining order and an OSC re preliminary
injunction to enjoin the removal of the trees in two planters
outside her unit (Planters 3a and 3b). These planters contained
nine cypress trees—approximately 30 to 40 feet tall—two lemon
trees, and four fig trees. She argued that the proposed project
was a capital improvement and the CC&Rs required the Board to
obtain approval for the project from a majority of the HOA voting
members. Kelly also cited to the Open Meeting Act in support of
her contention that the Board’s closed meetings on the proposed
project violated the Civil Code. In support of the application, she
submitted the declaration of architect Dean Vlahos who stated he
found no evidence the planters near Kelly’s unit caused leaks in
the garage, and that removal of the trees would not solve the
water leakage.
In opposition, the HOA argued that the proposed work did
not constitute a capital improvement and thus, the HOA did not
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need membership approval to remove the trees. The HOA
further argued it was within its right to hold “closed executive
sessions” on the waterproofing and landscaping issues because
Kelly had threatened litigation. According to the Board, it had
conducted a reasonable inquiry into the proposed work and its
decision to remove the trees was supported by experts in water
intrusion. In its opposition, the HOA relied on the report of
“waterproofing consultant” Mark Vanderslice, who stated that
the trees in Planters 3a and 3b were causing leaks in the garage.
Vanderslice recommended the removal of all the plants within
the planters to allow the planters to be waterproofed.
On August 20, 2018, the trial court granted the temporary
restraining order. The TRO enjoined the HOA from removing the
trees in front of or adjacent to Kelly’s unit, but allowed the HOA
to proceed with its landscaping and waterproofing plans
elsewhere on the premises.2
On August 24, 2018, the Board called a meeting to advise
the homeowners about the cost of the waterproofing and
landscaping plans. Kelly attended the meeting and voiced her
objection to the proposals. At the meeting, the Board voted to
approve the waterproofing and landscaping proposals.
On September 28, October 10 and October 11, 2018, the
trial court heard testimony from experts on both sides. On
November 6, 2018, the court held closing argument and took the
matter under submission. Three days later, the court issued a
preliminary injunction. It found the Board had authority under
2 The initial TRO enjoined the Board from removing any
trees on the HOA premises or implementing any “ ‘water
remediation’ efforts,” but was then modified to enjoin the Board
only from removing the trees around Kelly’s unit.
4
the CC&Rs “to perform routine maintenance which includes
repair and landscaping.” Based on the evidence presented at the
hearing, the court made the preliminary finding that the “Board
[] conducted a reasonable investigation as to the planters, has
acted in good faith, in the best interests of the HOA members,
and consistent with the CC&Rs.” “However, in examining the
interim harm that [Kelly] is likely to sustain if the injunction
were denied as compared to the harm that the HOA is likely to
suffer if the preliminary injunction were issued, the balance of
harms weigh in favor of [Kelly] as to the trees only. The trees are
10–40 years old. To remove them would create irreparable harm.
They could not grow back in any of the parties’ lifetimes. The
HOA may perform all the tasks they need to around the trees but
may not remove the [] trees until the trial is completed . . . .
[¶] The court further finds that the Board has conducted a
reasonable investigation as to the planters, has acted in good
faith, in the best interest of the HOA members, and consistent
with the CC&Rs. However, in weighing the harm that would be
caused, the current evidence weighs in favor of [Kelly’s] evidence
as to the trees.” The HOA filed a timely appeal.
DISCUSSION
1. Test for Issuance of Preliminary Injunction and
Standard of Review
“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. [Citation.] . . . [¶] The trial
court’s determination must be guided by a ‘mix’ of the potential-
merit and interim-harm factors; the greater the plaintiff’s
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showing on one, the less must be shown on the other to support
an injunction. [Citation.]” (Butt v. State of California (1992) 4
Cal.4th 668, 677–678 (Butt).)
“This is especially true when the requested injunction
maintains, rather than alters, the status quo.” (King v.
Meese (1987) 43 Cal.3d 1217, 1227.) When “the trial court is
presented with evidence on the two factors in both cases but fails
to make express findings, we presume that the trial court made
appropriate factual findings [citation] and review the record for
substantial evidence to support the rulings.” (14859 Moorpark
Homeowner’s Assn v. VRT Corp. (1998) 63 Cal.App.4th 1396,
1402 (14859 Moorpark).)
In determining whether the plaintiff will suffer interim
harm, courts have considered the inadequacy of other remedies,
the degree of irreparable harm, and the necessity of preserving
the status quo. (See 14859 Moorpark, supra, 63 Cal.App.4th at
p. 1402.) However, a “trial court may not grant a preliminary
injunction, regardless of the balance of interim harm, unless
there is some possibility that the plaintiff would ultimately
prevail on the merits of the claim.” (Butt, supra, 4 Cal.4th at
p. 678.)
“Generally, the ruling on an application for a preliminary
injunction rests in the sound discretion of the trial court. The
exercise of that discretion will not be disturbed on appeal absent
a showing that it has been abused. [Citations.].” (Cohen v. Board
of Supervisors (1985) 40 Cal.3d 277, 286; see also SB Liberty,
LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 281.)
“When the superior court grants a preliminary injunction, the
restrained party need only show that the superior court abused
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its discretion as to one of the two factors.” (Smith v. Adventist
Health System/West (2010) 182 Cal.App.4th 729, 749.)
“The trial court’s order on a request for a preliminary
injunction ‘reflects nothing more than the superior court’s
evaluation of the controversy on the record before it at the time of
its ruling; it is not an adjudication of the ultimate merits of the
dispute.’ [Citations.] The preliminary injunction is intended to
‘preserv[e] . . . the status quo until a final determination of the
merits of the action.’ [Citation.]” (People v. Uber Technologies,
Inc. (2020) 56 Cal.App.5th 266, 283.)
“In reviewing an order granting a preliminary injunction,
we do not reweigh conflicting evidence or assess witness
credibility, we defer to the trial court’s factual findings if
substantial evidence supports them, and we view the evidence in
the light most favorable to the court’s ruling. [Citation.]” (City of
Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th
291, 298–299.)
2. Interim Harm
The trial court found that removing the trees would cause
Kelly the greater interim harm because the trees were 10 to 40
years old and would not grow back in her lifetime. This finding
was supported by Kelly’s declaration that the trees provided her
with privacy and shade, protected her from intruders, and
created a sound barrier.
The HOA argues that Kelly would suffer no harm because
the HOA intended to replace the removed trees with “similarly
beautiful” trees. The trial court found that any new trees would
not reasonably substitute for the old ones—the trees could not
grow to their current height in Kelly’s lifetime. Without the
preliminary injunction, the HOA would proceed to remove the
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trees, and Kelly would have no reason to continue to litigate her
claims for injunctive relief. Were the HOA to remove the trees
immediately, a trial on the HOA’s right to do so would be
pointless.
The HOA also argues that it suffered the greater interim
harm,3 namely “the continuing water intrusion into the
subterranean garage.”4 The HOA does not dispute that it failed
to make this argument before the trial court. (See Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)
3 We observe that trial was set on a date several months
after the preliminary injunction was issued. It is now two years
since the preliminary injunction took effect. The HOA’s
argument that it has suffered grave interim harm is undercut by
its choice to appeal a decision that necessarily led to the
extension of the injunction instead of addressing the merits at
trial. (Cf. People v. Uber Technologies, Inc., supra, 56
Cal.App.5th at p. 303 [in an appeal of a preliminary injunction,
appellant sought expedited briefing schedule].)
4 The HOA also argues that the “security of [the HOA] and
other homeowners continues to be compromised because
installation of the safety fence and cameras could not occur
without moving the trees.” In support of this point, the HOA
cites to two declarations it submitted to the trial court. Lynn
McCarthy, the president of the Board of Directors, declared that
“we are installing security cameras and intend to install a metal
fence atop the preexisting stucco wall.” Martha Weller, a
member of the Board of Directors, stated that “Kelly has fought
the community on numerous occasions over the past six years to
not put a security fence and security cameras in the common area
in front of her townhome.” Neither declaration shows that the
court’s preliminary injunction prevented the HOA from installing
a fence and security cameras.
8
Assuming the argument is not waived, Vlahos’s declaration was
substantial evidence the planters outside of Kelly’s unit did not
cause leaks in the garage.
We conclude the trial court did not abuse its discretion in
finding that the interim-harm factor weighed heavily in Kelly’s
favor. We also observe that the injunction preserves the status
quo pending trial. (See Brown v. Pacifica Foundation, Inc. (2019)
34 Cal.App.5th 915, 925.
3. Likelihood of Success on the Merits
We turn next to the potential-merit factor, and whether
Kelly showed a likelihood of prevailing on the merits of any of her
claims. The HOA argues that the court’s findings in favor of the
HOA preclude any possibility that the trial court impliedly found
Kelly could prevail on the merits of her claims. The trial court
found that the HOA acted consistent with the CC&Rs, pursuant
to a reasonable investigation, in good faith, and in the best
interests of the HOA members. These findings meet the criteria
set forth in Lamden v. La Jolla Shores Clubdominiun
Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden) for judicial
deference to a homeowners association’s decision about
maintenance or repair of a development’s common areas. The
HOA argues the proposal to remove the trees amounted to a
matter of “ordinary maintenance” entitled to deference under
Lamden. Under this reasoning, the HOA says, the trial court
was required to defer to the HOA’s decision about removing trees
in Planters 3a and 3b, and by extension, there was no likelihood
Kelly could prevail on any of her claims. We first address this
argument as it applies to Kelly’s claims for breach of contract,
nuisance and declaratory relief; we address separately Kelly’s
claim for violation of the Open Meeting Act.
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a. Breach of Contract, Nuisance and Declaratory Relief
Kelly’s breach of contract and declaratory relief claims are
based on the HOA’s alleged failure to obtain homeowners’
approval for what Kelly contends was a “capital improvement”—
the removal of the trees in Planters 3a and 3b. The nuisance
claim alleges that the Board’s plan unreasonably interfered with
her enjoyment of her property. In the Board’s view, there was no
showing Kelly could prevail on these claims because the trial
court’s Lamden findings require the court to defer to the Board’s
decision to excavate the planters.
In Lamden, a homeowners association chose to spot treat
an infestation of termites in the development’s common area
instead of fumigating for termites. (Lamden, supra, 21 Cal.4th at
p. 253.) One of the homeowners in the development sued,
arguing that the association should have fumigated. (Id. at pp.
254–255.) She alleged the association had failed to adequately
maintain and repair the common areas as required by the CC&Rs
and the Civil Code. (Ibid.) The trial court deferred to the Board’s
decision to spot treat rather than fumigate. (Id. at p. 256.)
The Supreme Court agreed with the trial court and
announced a rule of “judicial deference” to the ordinary
maintenance decisions of homeowner associations: “Where a duly
constituted community association board, upon reasonable
investigation, in good faith and with regard for the best interests
of the community association and its members, exercises
discretion within the scope of its authority under relevant
statutes, covenants and restrictions to select among means for
discharging an obligation to maintain and repair a development’s
common areas, courts should defer to the board’s authority and
presumed expertise.” (Lamden, supra, 21 Cal.4th at p. 253.)
10
Here, the trial court’s preliminary findings that the Board
acted upon reasonable investigation, in good faith, in the best
interests of the HOA members, and consistent with the CC&Rs
met the Lamden criteria for deference to the Board’s decision to
remove the trees as part of a plan to stop the planters from
leaking. Lamden aside, the trial court’s finding that the HOA
acted in compliance with the CC&Rs is inconsistent with the
breach of contract and declaratory relief claims’ allegations that
the HOA violated the CC&Rs by failing to obtain the
homeowners’ approval for a capital improvement.
The Lamden findings appear inconsistent with a finding
that Kelly could succeed on the merits of her nuisance claim. To
establish a private nuisance, the plaintiff must show an
unreasonable interference with her use and enjoyment of the
land. (See Monks v. City of Rancho Palos Verdes (2008) 167
Cal.App.4th 263, 303.) “ ‘The primary test for determining
whether the invasion is unreasonable is whether the gravity of
the harm outweighs the social utility of the defendant’s
conduct . . . . Again the standard is objective: the question is not
whether the particular plaintiff found the invasion unreasonable,
but “whether reasonable persons generally, looking at the whole
situation impartially and objectively, would consider it
unreasonable.” ’ [Citation.]” (Ibid.) Here, the court found the
HOA made a decision in the best interests of the homeowners. In
other words, the decision to remove the trees in order to prevent
water intrusion into the garage served the social utility of the
homeowners, including Kelly. In light of this finding, the trial
court reasonably concluded that Kelly was not likely to prevail on
the merits. (See Lamden, supra, 21 Cal.4th at p. 269 [“ ‘anyone
who buys a unit in a common interest development with
11
knowledge of its owners association’s discretionary power accepts
“the risk that the power may be used in a way that benefits the
commonality but harms the individual.” ’ ”].)5
b. Violation of the Open Meeting Act
Our analysis of the likely success on the merits of the Open
Meeting Act claim is different. We start by being mindful of
Lamden’s limitations. “It is important to note the narrow scope
of the Lamden rule. It is a rule of deference to the reasoned
decisionmaking of homeowners association boards concerning
ordinary maintenance. It does not create a blanket immunity for
all the decisions and actions of a homeowners association.”
(Affan v. Portofino Cove Homeowners Assn. (2010) 189
Cal.App.4th 930, 940.) If Kelly’s claims merely raised the issue of
whether the HOA had adequately maintained and repaired the
common areas, the court’s findings were inconsistent with any
implied finding that she was likely to prevail on the merits of this
claim. Kelly’s claims, though, are not limited to routine repair
and maintenance decisions by the Board.
Kelly’s cross-complaint alleged that the HOA violated the
Open Meeting Act (Civ. Code, §§ 4900 et seq.) when the Board
“took action” on the proposal to remove the trees “at a series of
closed meetings which Association members including [Kelly]
were not allowed to attend and which did not meet the criteria for
5 As we have observed, the court’s findings that suggested
Kelly was not likely to prevail on the merits are only relevant at
the preliminary injunction stage. Preliminary injunction findings
do not reflect “ ‘an adjudication of the ultimate merits of the
dispute.’ ” (People v. Uber Technologies, Inc., supra, 56
Cal.App.5th at p. 283.) Nothing we have said in this opinion is
intended to foreclose either party from any argument they might
make at trial.
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[an] ‘executive session.’ ” Kelly sought to enjoin the Board from
removing the trees under this cause of action as well.
“The Civil Code provisions that require homeowners
association boards to hold open meetings and to allow members
to speak publicly at them reflect the Legislature’s recognition
that such boards possess broad powers to affect large numbers of
individuals through their decisions and actions.” (Golden Eagle
Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19
Cal.App.5th 399, 416.) “Because of a homeowners association
board’s broad powers and the number of individuals potentially
affected by a board’s actions, the Legislature has mandated that
boards hold open meetings and allow the members to speak
publicly at the meetings. [Citations.] These provisions parallel
California’s open meeting laws regulating government officials,
agencies and boards. [Citation.] Both statutory schemes
mandate open governance meetings, with notice, agenda and
minutes requirements, and strictly limit closed executive
sessions. [Citation.]” (Damon v. Ocean Hills Journalism Club
(2000) 85 Cal.App.4th 468, 475.)
Specific provisions of the Open Meeting Act that apply here
include Civil Code sections 4910, 4925, 4935, and 4955. Under
Civil Code section 4910, a homeowners board association “shall
not take action on any item of business outside of a board
meeting.” (Civ. Code, § 4910, subd. (a).) “Any member may
attend board meetings, except when the board adjourns to, or
meets solely in, executive session.” (Civ. Code, § 4925, subd. (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
13
member’s payment of assessments, as specified in [s]ection 5665.”
(Civ. Code, § 4935, subd. (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 . . . .” (Civ. Code, § 4955, subd. (a).)
The trial court did not make express findings as to the
Open Meeting Act cause of action. We therefore presume the
trial court made factual findings to support the potential–merit
factor as to this claim. (14859 Moorpark, supra, 63 Cal.App.4th
at pp. 1402–1403 [“When, as here, the trial court is presented
with evidence on the two factors [for the issuance of an
injunction] in both cases but fails to make express findings, we
presume that the trial court made appropriate factual findings
and review the record for substantial evidence to support the
rulings”].) The HOA argues that the “trial court’s finding that
[the HOA] satisfied all factual prerequisites to be entitled to
judicial deference will bar every cause of action [Kelly] alleged in
the [cross-]complaint. . . . [¶] . . . [¶] [The Open Meeting Act
claim] only seek[s] declaratory and injunctive relief, neither of
which Kelly can show any probability of prevailing because of the
rule of judicial deference.” (Emphasis added.)
We conclude that judicial deference to a board’s repair and
maintenance decisions under Lamden does not extend to a
board’s decision to hold closed meetings. The stated justification
for the Lamden rule was “the relative competence, over that of
courts, possessed by owners and directors of common interest
developments to make the detailed and peculiar economic
decisions necessary in the maintenance of those developments.”
(Lamden, supra, 21 Cal.4th at pp. 270–271.) This relative
competence has no bearing on a decision by the Board to exclude
14
a member from attending its meetings. Indeed, given the wide
latitude homeowners association boards have in making repair
and maintenance decisions, it is all the more important that
homeowners be afforded the opportunity to participate in the
meetings at which those repair and maintenance decisions are
made. If homeowners do not have a vote, at least the Open
Meeting Act gives them the possibility of input.
Substantial evidence supported the implied finding that the
HOA had taken action in closed meetings on its plans to repair
the leaks. Kelly stated in her declaration that the Board held
several “executive closed sessions” where it “made decisions
about the work,” and attached several notices of board meetings
and communications written by the community manager
indicating the Board had done so. The HOA, in turn,
acknowledged that it had met in closed sessions to “discuss” the
waterproofing of the planters. The HOA did not dispute Kelly’s
allegation that the Board had taken “action on the Proposed
Capital Improvements and the Leak Repair at a series of closed
meetings.” (See Civ. Code, § 4910, subd. (a) [“The board shall not
take action on any item of business outside of a board meeting”].)6
We conclude that the HOA did not meet its burden of
showing the trial court abused its discretion in its implied finding
that Kelly had a likelihood of prevailing on her cause of action for
violation of the Open Meeting Act.
6 In the trial court, the Board attempted to justify its
decision to close one or more meetings to Kelly by pointing out
that Kelly had threatened litigation. The Board does not develop
the point on appeal.
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DISPOSITION
The trial court’s order granting respondent’s preliminary
injunction is affirmed. Respondent is awarded her costs on
appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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