Case Number: 18STCV07346 Hearing Date: December 27, 2018 Dept: 51
MOVING PARTY: Plaintiff Briarwood Owners’ Association, Inc.
OPPOSITION: None Received (due on December 13, 2018)
REPLY: None Received
Background
Plaintiff Briarwood Owners’ Association, Inc. (“Plaintiff”) manages a condominium project known as Briarwood. Plaintiff alleges that two of Briarwood’s residents (Charles Pendell in Unit 107 and Henry Golliday in Unit 109) have failed to clean and maintain their units in such a manner as to permit an active cockroach infestation to develop in each of their units. Plaintiff also alleges that that Plaintiff’s cockroach exterminator has been unable to treat the units due to the units’ uncleanliness, and that the residents have failed to clean their units despite requests to do so. Plaintiff further alleges that the failure to clean and maintain the units has caused annoyance and disturbance to the surrounding residents of Briarwood. Plaintiff alleges that all of these acts violate the CC&Rs which govern Briarwood.
On December 6, 2018, Plaintiff filed a Complaint against Defendants Charles Pendell, Henry Golliday, and Doe Defendants for equitable relief and damages based on the following causes of action:
Breach of CC&Rs (Unit 107);
Nuisance (Unit 107);
Breach of CC&Rs (Unit 109);
Nuisance (Unit 109)
On December 12, 2018, the Court granted Plaintiff’s Ex Parte Application for a Temporary Restraining Order. The Temporary Restraining Order requires Defendants Charles Pendell and Henry Golliday (hereinafter “Defendants”) to permit Plaintiff access Units 107 and 109 in order to eradicate the ongoing cockroach infestations. The Court also ordered Defendants to appear on December 27, 2018 to show cause as to why a preliminary injunction should not be issued.
The Court considered the papers and rules as follows on the Order to Show Cause re: Preliminary Injunction.
Preliminary Injunction Standard:
An injunction is an order requiring a person to refrain from a particular act or to do a particular act. (People ex rel. Gwinn v. Kothari (2000) 83 Cal. App. 4th 759, 765 (citing Code Civ. Proc. § 525).) A provisional or preliminary injunction can issue when the standards of Code Civ. Proc. § 526, subd. (a) are met. Additionally, a court may grant injunctive relief based on declarations showing sufficient factual grounds for relief. (Code Civ. Proc., §¿527, subd. (a).)
In deciding whether to issue a preliminary injunction, the trial court should evaluate two factors. “The first is the likelihood that the [moving party] will prevail on the merits at trial. The second is the interim harm that the [moving party] is likely to sustain if the injunction were denied as compared to the harm that the [responding party] is likely to suffer if the preliminary injunction were issued.” (Metro Traffic Control. Inc. v. Shadow Traffic Network (1994) 22 Cal. App. 4th 853, 858; Universal Life Church. Inc. v. State (1984) 158 Cal. App. 3d 533; IT Corp. v. County of Imperial, (1983) 35 Cal.3d 63, 69.)
The Court’s determination is guided by a “mix” of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) 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. Id. (See also Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749 (stating that a preliminary mandatory injunction can be granted only where the plaintiff has made a showing of reasonable probability that plaintiff will prevail at trial on the merits).) Conversely, the more likely it is that plaintiff will ultimately prevail, the less severe must be the harm that plaintiff alleges will occur if the injunction does not issue. This is especially true when a requested injunction maintains, rather than alters, the status quo. (King v. Meese (1987) 43 Cal.3d 1217.)
In issuing injunctive relief, the trial court “must exercise its discretion in favor of the party most likely to be injured. . . [i]f the denial of an injunction would result in great harm to the plaintiff and the defendants would suffer little harm if it were granted, then it is an abuse of discretion to fail to grant the preliminary injunction.” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205 (internal citations omitted).)
Analysis
As a preliminary matter, Defendants did not file an Opposition to this matter. Lack of opposition does not automatically entitle the moving party to prevail. Nonetheless, a party’s failure to file opposition can be considered as an admission that the motion is meritorious, and the Court can refuse to hear oral argument from such party. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
Likelihood that the Moving Party will Prevail on the Merits at Trial
All of the causes of action in Plaintiff’s Complaint are brought as breaches of the CC&Rs. (See Complaint.) Since CC&Rs are treated as written contracts, a Plaintiff pleading a breach of CC&Rs must plead the elements of breach of contract. (Treo @ Kettner Homeowners Ass’n v. Superior Court, (2008) 166 Cal.App.4th 1055, 1066.) The elements of a breach of contract claim are (1) the existence of contract between Plaintiff and Defendants; (2) Plaintiff’s performance or excuse for nonperformance; (3) the Defendants’ breach; and (4) any resulting damages. ¿(E.g., Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
Here, Plaintiff presents an authenticated copy of pertinent portions of the Briarwood CC&Rs, which is binding all owners including Defendants. (Solis Decl., ¶¶ 3, 4; Ex. A.) The relevant provisions are as follows. Section 2.9 of the CC&Rs provides that, “All rubbish, trash, and garbage shall be regularly removed from each Unit and shall not be allowed to accumulate there or on the adjacent Common Area.” (Solis Decl., ¶ 3, Ex. A, p. 8.) Section 2.4 of the CC&Rs states that, “No Unit shall be used in such manner as to interfere with the enjoyment of occupants of other Units or to annoy them by unreasonable noises or otherwise; nor shall any nuisance, or illegal activity shall be carried on in any Unit.” (Id., p. 6.) Section 10.4 provides that, “The result of or condition caused by any violation of any said limitations, restrictions, conditions or covenants is and shall be a nuisance, and every remedy at law or inequity now or hereafter available against a public or private nuisance may be exercised by an enforcing person.” (Id., p. 31.) Lastly, Section 10.3 makes clear that any breach of may be enjoined or remedied by “the Association.” (Ibid.)
Next, Plaintiff presents evidence of Defendants’ breaches pursuant to the CC&Rs. Plaintiff provides the declaration of Wil Solis, who is the manager of Plaintiff and handles day-to-day operations at Briarwood. (Solis Decl., ¶¶ 1,2.) Solis declares that around a month before December 7, 2018, he saw “that the units [107 and 109] were not clean or properly maintained, that there was an excessive amount of clutter in both, and that they were both overrun by roaches.” (Id., ¶ 5.)
As evidence of damages, Plaintiff presents two emails that Solis received from other residents at Briarwood, each of whom have complained about the cockroaches. (Solis Decl., ¶¶ 12, 13, Exs. D, E.) One of the residents (in Unit 209) claims that she has “live roaches, multiple each day” in her Unit, and that it is a “health concern.” (Solis Decl., ¶ 13, Ex. E.) The resident also states she has been unable to rent her Unit and has lost $6,000 as a result. (Id.) In addition, Solis declares that his office “continues to receive complaints and reports […] from neighboring owners” (Solis Decl., ¶ 14) and that “the infestation problem has reached a level that amounts to a severe health and safety risk to the surrounding residents at Briarwood.” (Id., ¶ 11.)
Given the above evidence, and the lack of an Opposition from Defendants, the Court finds the evidence sufficient to show a likelihood that Plaintiff will prevail on each element of its causes of action at trial. Accordingly, the Court concludes that the first prong is in favor of Plaintiff. As such, the analysis proceeds to the second prong.
Comparative Interim Harm Between Plaintiff and Defendants
If the injunction is denied, Plaintiff argues it will suffer irreparable harm due to the ongoing health risk suffered by Briarwood residents. As evidence, Plaintiff cites to the two emails Solis received from other residents at Briarwood, each of whom have complained about the cockroaches. (Solis Decl., ¶¶ 12, 13, Exs. D, E.) One resident (in Unit 105) states that he has killed around “40-50 active roaches” and that he is concerned about the “severity” of the “health risk it poses.” (Solis Decl., ¶ 12, Ex. D.) Another resident (in Unit 209) states she experiences “live roaches, multiple each day” in her Unit, and that she too believes it is a “health concern.” (Solis Decl., ¶ 13, Ex. E.) Furthermore, Solis declares that his office “continues to receive complaints and reports […] from neighboring owners” (Solis Decl., ¶ 14) and that “the infestation problem has reached a level that amounts to a severe health and safety risk to the surrounding residents at Briarwood.” (Id., ¶ 11.)
Given the above evidence, and the lack of an Opposition from Defendants, the Court finds the that the denial of the injunction would result in significant harm to Plaintiff due to the health risk caused by the cockroach infestation.
In contrast, Defendants present no evidence of the harm they would suffer if the injunction is granted.
Accordingly, the Court concludes that the balancing of harms weighs in Plaintiff’s favor.
Therefore, Plaintiff’s Motion for a Preliminary Injunction is GRANTED.
Conclusion:
Plaintiff’s Motion for a Preliminary Injunction is GRANTED.
Plaintiff to give notice.
Dated:
__________________________________________
Dennis Landin
Judge of the Superior Court