Case Number: BC634432 Hearing Date: January 16, 2018 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

NATHAN JOHNSON, et al.;

Plaintiff,

vs.

STONEYHILL SECURITY ASSOCIATION, ET AL.;

Defendants.

AND ALL RELATED CROSS-ACTIONS

Case No.:

BC634432

Hearing Date:

January 16, 2018

[TENTATIVE] RULING RE:

Defendant STONEYHILL’S MOTION FOR PRELIMINARY INJUNCTION.

defendant’s Motion for Preliminary Injunction is DENIED.

Factual Background

This is an action against homeowner associations involving the Plaintiffs’ asserted right to a permit allowing them to park on the street where they live. Plaintiffs Nathan Johnson, Shari Edwards (“Edwards”), and Edwards-Johnson LLC (“Plaintiffs”) allege that they are homeowners within a gated community in Los Angeles. (First Amended Complaint (“FAC”) ¶ 14.) They allege that Defendants Crest/Promontory Common Area Association (“Crest”) and Stoneyhill Security Association (“Stoneyhill”) operate as the homeowners associations for Plaintiffs. (FAC ¶ 5.) Defendants Dennis Koci, Ernie Frankel, Theodore Cohen, and Marty Lutin are all members of the board of directors of Stoneyhill. (FAC ¶¶ 6–9.)

The FAC alleges further as follows. Plaintiffs allege that the Covenants, Conditions, and Restrictions (“CC&Rs”) governing parking within their community prohibit parking on the street between 2:00 a.m. and 7:00 a.m. (FAC ¶ 15.) Plaintiffs do not have space to avoid parking on the street, so in early 2015 they obtained permits from Defendants for street parking. (FAC ¶¶ 15–16.)

In April 2016, Plaintiffs submitted another application for a street parking permit, but Defendants denied the application. (FAC ¶ 17.) Plaintiffs continued to park on the street, earning in excess of 50 citations. (FAC ¶ 18.) Defendants threatened to tow the parked vehicle. (FAC ¶ 18.)

In July 2016, Plaintiffs sent a cease and desist letter to Defendants asking them to stop issuing citations and threatening to tow their vehicle. (FAC ¶ 19.)

Plaintiffs have a neighbor who harassed them on a continual basis, yet who is permitted to park overnight on the street. (FAC ¶ 20.) Plaintiffs allege that Defendants are targeting them at the behest of their hostile neighbor. (FAC ¶ 20.)

Plaintiffs have requested documents from Defendants under Civil Code § 5210, but Defendants have declined to produce any documents. (FAC ¶ 21.)

Plaintiffs allege that one day in August 2016 they were informed that Stoneyhill board member and Defendant Dennis Koci was taking pictures of their garage through the garage’s front windows. (FAC ¶ 22.) Plaintiffs allege that Koci took these actions at the behest of Defendants. (FAC ¶ 23.)

Stoneyhill alleges in a Cross-Complaint that Plaintiffs have continued parking on the street in violation of applicable CC&Rs, and that they have ignored and refused to pay the fines for their violations. (FAXC ¶¶ 10–11.)

procedural history

Plaintiffs filed their Complaint on September 20, 2016, alleging four causes of action:

Breach of Fiduciary Duty

Declaratory Relief

Injunctive Relief

Invasion of Privacy

Plaintiffs filed their FAC on April 12, 2017 alleging the same causes of action.

Stoneyhill filed a Cross-Complaint for breach of governing documents on February 22, 2017. Stoneyhill filed a First Amended Cross-Complaint on May 11, 2017, also alleging one cause of action for breach of governing documents.

On November 27, 2017, this court sustained Defendants’ demurrers to Plaintiffs’ First Cause of Action as to Edwards’ and Johnson’s individual claims, the Third Cause of Action as pleaded against the individual defendants, and the Fourth Cause of Action as to Edwards-Johnson LLC’s claim for invasion of privacy. The court also granted Stoneyhill’s Motion to Strike as to Plaintiffs’ request for attorney’s fees, but denied both its and Crest’s motions to strike in all other respects.[1]

On November 30, 2017, Stoneyhill filed the present Motion for a Preliminary Injunction. Plaintiffs filed an Opposition on January 3, 2018. Stoneyhill filed a Reply on January 8, 2018.

Discussion

JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Stoneyhill requests judicial notice of the following documents:

Exhibit 1: Declaration of Covenants, Conditions, and Restrictions of the Crest Promontory Homeowners Association recorded on August 10, 1983 as document number 83-917879 in the Office of the Los Angeles County Recorder

Exhibit 2: Certification of Adoption of Amendment to Declaration of Covenants, Conditions and Restrictions for the Crest Promontory Common Area Association, recorded on January 5, 2015, document number 20160010064 in the Office of the Los Angeles County Recorder

Exhibit 3: Declaration Establishing Covenants, Conditions and Restrictions for the Stoneyhill Security Association, recorded on January 16, 1986, document number 86-58303 in the Office of the Los Angeles County Recorder

Exhibit 4: Certification of Adoption of Amendment to Declaration Establishing Covenants, Conditions and Restrictions for the Stoneyhill Security Association, recorded on January 5, 2016, document number 20160010065 in the Office of the Los Angeles County Recorder

Exhibit 5: Grant Deed conveying title to 12647 Promontory Road, Los Angeles, CA 90049 to Plaintiffs Johnson and Edwards, recorded April 20, 2010, document number 20100530483 in the Office of the Los Angeles County Recorder

Exhibit 6: Grant Deed conveying title to property from Plaintiffs Johnson and Edwards to Plaintiff Edwards-Johnson LLC, recorded February 11, 2015, document number 20150152937 in the Office of the Los Angeles County Recorder

Exhibit 7: Plaintiffs’ First Amended Complaint in this action

Exhibit 8: Stoneyhill’s First Amended Cross-Complaint in this action

The court takes judicial notice of the above items.

OBJECTIONS

Stoneyhill objects to certain portions of the declaration of Shari Edwards submitted by Plaintiffs with their Opposition to the present motion.

The court rules as follows.

The court OVERRULES Objection Nos. 1-3.

As to Objection No. 4, the court OVERRULES the objection as to the first sentence beginning with “However” and the last sentence starting with “We have observed,” and otherwise SUSTAINS the objection.

The court SUSTAINS Objection Nos. 5-8.

The court OVERRULES Objection Nos. 9-10.

The court does not rule on Objection No. 11 because the court cannot see what is depicted in the fax-filed copy of exhibit A. If Plaintiffs want this court to consider the contents of Exhibit A, they should bring a legible copy of the Edwards Declaration and exhibits to the hearing.

PRELIMINARY INJUNCTION

Code of Civil Procedure, section 526, subdivision (a) provides that the court “may” grant an injunction in the following cases:

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

(7) Where the obligation arises from a trust.

(Code Civ. Proc., § 526, subd. (a).)

In determining whether to issue a preliminary injunction, a trial court considers: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177.) “‘The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.’ [Citation.]” (Ibid.)

Stoneyhill seeks a preliminary injunction barring Plaintiffs from parking any vehicle overnight between the hours of 2:00 and 7:00 a.m. on any private streets within the Stoney Hill gated community that does not display a valid Temporary Overnight Resident Parking Pass. (Proposed Injunction at p. 2.)

LIKELIHOOD THAT STONEYHILL WILL PREVAIL ON THE MERITS

“Regardless of the balance of interim harm, the preliminary injunction cannot be allowed to stand unless there is ‘some possibility’ [plaintiff] will prevail on the merits of its action.” (Costa Mesa City Employees’ Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309.)

Stoneyhill’s probability of success on the merits turns on two issues. The first is the likelihood that it will be able to show that Plaintiffs, per the First Amended Cross-Complaint, are parking on the street overnight in violation of the applicable CC&Rs. (FAXC ¶ 9.) The second issue is whether Stoneyhill will be able to show that its enforcement of these regulations on Plaintiffs was fair and reasonable, “made in good faith, . . . not arbitrary or capricious.” (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772.)

The court finds that Stoneyhill in the present motion has shown a strong probability of succeeding on both issues. Plaintiffs do not dispute the existence or applicability of the CC&Rs that apply to them and their neighbors:

OVERNIGHT ON-STREET PARKING: All residents are expected to fully utilize their garage space, as city law prescribes, for the parking of cars. In addition, residents are expected to so use their driveways.

No overnight parking will be permitted on any street behind the Stoney Hill Guard Gate unless a vehicle bears the Overnight parking decal affixed to the rear window.

Temporary overnight parking passes can be obtained by application to the guard gate when residents have short-term visitors and insufficient driveway space.

OTHER PARKING RESTRICTIONS: . . .

. . .

If residents are known not to be using their garages for parking and resident-registered and/or guest-owned vehicles are habitually parked on the street, said vehicles will be considered in violation of these rules. They will be cited, and if 72 hours elapse after issuance of the citation, the vehicles will be towed, in accordance with Vehicle Code Section 22658.2.

(Tolchin Decl. Exh. 5, underlining in original)

Plaintiffs do not address the import of these rules, which plainly state that residents are expected to use their garages for parking and that residents who habitually use street-parking for themselves when their garages are not being used for parking will be cited and possibly have their vehicles towed. Plaintiffs in response do not dispute that their garage is not being used for parking. Indeed, Edwards acknowledges in her declaration that she and Johnson have three cars and a three-car garage. (Edwards Decl. ¶ 2.) They argue instead that they are unable to park their cars in their garage because they are using the garage space for cabinets and storage. (Opposition at p. 9; Edwards Decl. ¶ 2.) They add that they cannot use their driveway for all three cars “because doing so obstructs the sidewalk as to the cars hang[ing] over to the sidewalk.” (Edwards Decl. ¶ 3.)[2]

Plaintiffs cite no authority from the CC&Rs or elsewhere for the notion that their use of their garage for cabinets and storage somehow exempts them from the CC&R rules, or that the reduction in storage space that parking in the garage might entail mitigates the applicability of the rules to themselves. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 373 [“The restrictions on the use of property in any common interest development may limit activities conducted in the common areas as well as in the confines of the home itself.”].)

Plaintiffs’ sole argument on this point relates to the asserted arbitrary or retaliatory nature of Stoneyhill’s enforcement of the above rules. (Opposition at p. 7.) Plaintiffs argue that their neighbors had their applications for parking passes accepted and may now park on the street with no repercussions. (Opposition at p. 7.) Plaintiffs present no evidence as to these neighbors’ parking situations or whether they are fully utilizing their garage space in accordance with the CC&Rs. Stoneyhill, however, has produced evidence showing that one of Plaintiffs’ neighbors, Randalyn Foster, had previously received a permit because Foster’s family was , in fact, fully using their garage space for parking. (Tolchin Decl. ¶ 38; Exh. 21.) According to Tolchin, the Foster family had four licensed drivers residing in the home and parked three vehicles in their three-car garage, but could not fit their fourth vehicle, a Yukon XL, into the garage or driveway. (Tolchin Decl. ¶ 38.)

Plaintiffs also argue, without evidentiary foundation, that another of their neighbors named Manda Shahbazi may park on the street without consequence because of her friendly relationship with Stoneyhill’s leadership. (Opposition at p. 7.) Again, Plaintiffs have not shown that Shahbazi’s garage-usage is similar to their own. Moreover, Stoneyhill has produced responsive evidence that Shahbazi is the second most-cited individual in Plaintiffs’ community for parking violations. (Tolchin Reply Decl. ¶ 4, Exh. A.)[3] Plaintiffs have made no evidentiary showing that Stoneyhill’s efforts to enforce the parking rules against them are retaliatory or discriminatory, as alleged in Plaintiffs’ complaint. (FAC ¶ 20.)

The court therefore finds that Stoneyhill has a strong likelihood of prevailing on the merits of their cross-complaint.

INTERIM HARM TO STONEYHILL

An injunction will not issue unless the moving party establishes both a real threat of immediate and irreparable interim harm, and the inadequacy of legal remedies. (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 431; Triple A Machine Shop v. California (1989) 213 Cal.App.3d 131, 138.) “The more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 338.)

Because the court has found that Stoneyhill is likely to prevail on the merits, a less severe showing of relative harm is necessary for it to obtain the preliminary injunction it seeks. However, the court finds that Stoneyhill has paired its strong showing of likelihood of success with a weak showing of the interim harms it will suffer if an injunction is not granted.

Stoneyhill’s argument for harm is as follows. First, it argues that the principle of upholding the CC&Rs is valuable in itself, and that this principle will suffer in the interim if an injunction is not ordered. (Motion at pp. 14–15, citing Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 364 [“Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.”].)

While the holding in Nahrstedt supports Stoneyhill’s argument that courts will enforce CC&Rs where not found to be unreasonable, the holding was not in the context of a preliminary injunction. Rather, the question was whether the trial court properly sustained a demurrer to the complaint on the basis that the plaintiff, who was seeking declaratory relief that the prohibition on her keeping cats in her condominium unit was unenforceable, had stated a claim for relief. The Supreme Court found that the demurrer was properly sustained as to plaintiff’s claim for declaratory relief because “as a matter of law, [] the recorded pet restriction of the Lakeside Village condominium development prohibiting cats or dogs but allowing some other pets is not arbitrary, but is rationally related to health, sanitation and noise concerns legitimately held by residents of a high-density condominium project such as Lakeside Village, which includes 530 units in 12 separate 3-story buildings.” (Id. at p. 386.)

In this case, Plaintiffs do not challenge the restriction that they cannot park on the street without an “Overnight parking decal,” but argue that Stoneyhill improperly denied them a parking permit, which was granted to their neighbor, but denied to them even though they claim they have no room for their third car on the driveway.[4] While the court has held above that Stoneyhill is likely to succeed on the merits of this claim at trial, it must still show sufficient harm to support a grant of a preliminary injunction now instead of a ruling at trial –which at this point is only four months away.

Stoneyhill also argues that parking restrictions generally inure to the benefit of “traffic control and traffic and pedestrian safety along the narrow roadway (upper Promontory Road), security and crime prevention, and esthetics,” as well as limited street parking for authorized visitors. (Motion at p. 15.) In its Reply, Stoneyhill adds property values and the necessity of maintaining access for emergency responders, particularly given the recent Skirball fire that occurred near the Stoneyhill community. (Reply at pp. 4–5.)

Absent from this evidence is any showing that the particular violation at issue here poses any meaningful interim harm to the above interests prior to trial. According to Plaintiffs, they have been parking on the street for four years since they purchased their third car. (Edwards Decl. ¶ 2.) Stoneyhill may well have an interest in enforcing its parking regulations to protect the visual aesthetics of their community and insure sufficient parking for other guests, but those interests will be adequately served by a favorable judgment following trial. As to the need for emergency responders to have access on the streets, Stoneyhill does not present any evidence that the parking of Plaintiffs’ vehicle on the street has caused the street to be too narrow for emergency vehicles to pass. Indeed, the evidence that the Foster family has been allowed to park their large Yukon XL suggests that even with this larger vehicle, emergency responders have been able to access the streets. The court finds that the interim harm caused to the values the CC&R seeks to protect by a lone-wolf violator is small, as demonstrated by the temporary parking permits that Stoneyhill itself offers to its residents for temporary hardship, such as where parking space is unavailable because of garage or driveway repair. (Tolchin Decl. pp. 14–15, Exh. 23.)

Nor does it appear that Plaintiffs’ actions have inspired a general spirit of parking lawlessness in their community. (Tolchin Reply Decl. ¶ 4 [describing other violators].) Conversely, if an injunction is issued against Plaintiffs, they may be forced to substantially modify their garage by removing the cabinets and storage areas to accommodate parking even before trial begins. (Edwards Decl. ¶ 2.)[5] The parties dispute whether all three of Plaintiffs’ cars fit in their driveway. Stoneyhill has submitted photographs showing all three cars parked in the driveway side by side. (See Postnyy Decl. Exh. F) However, Plaintiffs argue that this parking arrangement results in obstruction of the sidewalk. (Edwards Decl. ¶ 3.) Specifically, Edwards states that “[b]ecause the driveway is not uniform and is shorter on the left side, we would be forced to park one of the vehicles at a significant angle in order to avoid the vehicle from blocking the sidewalk.” (Ibid.) Edwards states further that parking all three cars on the driveway “obstructs the sidewalk as the cars hang over into the sidewalk.” (Ibid.)

The court has reviewed the photograph attached as Exhibit F to the Postnyy declaration that shows all three vehicles parked on the driveway. However, the court cannot tell from the photograph whether the rear end of the vehicles hang over onto the sidewalk, which would itself be a violation of Stoneyhill’s parking rules. (Tolchin Decl., Exh. 23 at p. 3.)

Accordingly, the court finds that while Stoneyhill has made a strong showing of likelihood of prevailing on the merits at trial, the interim harm to the associations that is likely to occur prior to trial is minor, and interim harm to Plaintiffs great, such that interim relief is not warranted.[6] Stoneyhill’s Motion for a Preliminary Injunction is therefore DENIED.

Plaintiffs to give notice.

DATED: January 16, 2018 ________________________________

Hon. Gail Ruderman Feuer

Judge of the Superior Court

[1] The court’s files indicate that Crest, Stoneyhill, and the individual defendants filed answers to a “Second Amended Complaint” in early January. The court notes, however, that the court’s files do not have aSecond Amended Complaint. The court requests that Plaintiffs bring a conformed copy of the SAC to the hearing.

[2] This fact is in dispute, as discussed below.

[3] This is not to say that Shabazi’s citation record is in any way comparable to that of Plaintiffs. Plaintiffs since October 2016 have been cited for parking violations 265 times. (Tolchin Decl. ¶ 32, Exh. 18.) Shabazi, the second most-cited individual in the community, has been cited 11 times. (Tolchin Reply Decl. ¶ 4, Exh. A.) This evidence would not entirely negate an inference, properly supported by evidence, that Shahbazi is being treated more favorably than Plaintiffs for similar conduct, but it does mitigate the inference that Shahbazi has been afforded special treatment by Stoneyhill to a degree unique within the community.

[4] The CC&Rs provide for a “temporary overnight parking pass[]” for when “residents have short-term visitors and insufficient driveway space.” (Tolchin Ex. 5-2.) However, the CC&Rs also reference an “Overnight Parking decal,” and Tolchin confirms that the Foster family was granted an Overnight Parking Permit for a resident of the condominium. (See Tolchin ¶ 38; Ex. 5-2.)

[5] Indeed, Stoneyhill has not addressed the posting of a bond that would be necessary to support issuance of a preliminary injunction, which would need to be sufficient to cover the cost of removing the cabinets in the garage to allow the parking of the vehicle if ultimately at trial Plaintiffs prevail.

[6] The court does not find that Stonehill’s delay in seeking a preliminary injunction was excessive in light of settlement discussions and discovery. (See Reply at p. 10.)