Case Number: LC107535 Hearing Date: August 31, 2018 Dept: T

Rapoport, et al. v. Lake Lindero Homeowners Assoc., et al.

Plaintiff’s OSC re: Preliminary Injunction

Tentative ruling: Deny

Plaintiff homeowners seek a preliminary injunction to enjoin defendant Lake Lindero HOA from “continuing to refuse to pay Golf Projects Lindero, Inc. pursuant to a prior agreement between defendant LLHOA and GPL.” GPL previously had a contract to maintain common areas for the HOA.

Plaintiffs allege that the board of directors for the HOA improperly terminated the contract with GPL. Plaintiffs also allege that the directors are improperly withholding funds required for maintenance of the community golf course. Plaintiffs contend that individual defendant Christopher Barone conducts board business without notice of the agenda to other board members, improperly hired a new maintenance company at a higher cost without approval of the board of homeowners, and excluded board members from certain business in surreptitious meetings. On July 18, 2018, Plaintiffs filed a complaint for breach of fiduciary duty, breach of CC&Rs, violation of civil code sections 4774, 4900, 5200 and 5500, and declaratory relief.

Plaintiff Miller was previously HOA president. A new board was elected in March 2018; this board terminated the contract with GPL on 7/11/18. The board entered into a contract with a new property management company on 8/15/18.

To justify the granting of a preliminary injunctions, normally both irreparable harm and the likelihood of prevailing on the merits must have been established. (Millennium Rock Mortg., Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 812.) “The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is ‘likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant,’ and (2) whether there is ‘a reasonable probability that the plaintiffs will prevail on the merits.'” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408.)

Here, plaintiff fail to establish either. What appears is a disagreement between certain homeowners, including the former HOA president, and the current HOA board. There is no evidence presented by the moving papers sufficient to establish either prong required for this court to grant a preliminary injunction.

Secondarily, the court notes that plaintiffs do not seek to enjoin any behavior by defendant. Rather, the motion seeks to compel behavior by defendant – restoring payments to an entity that is no longer the property manager for the community.

The court cannot determine from the application whether the contract with GPL was properly terminated, but assumes that the hiring of the new management company and representation of the termination are credible representations. While the court can enjoin certain activities, the court cannot act on a now defunct situation.

“[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446 “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) Nothing in the application supports the court issuing a mandatory injunction allowing the court to direct the “rehiring” of GPL, Inc. under the guise of conducting homeowner association business “in compliance with the law.”