Filed 2/8/21 Kelly v. St. Denis Homeowners Assn. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

PATRICIA WARD KELLY

,

Cross

- c omplainant and Respondent,

v.

ST. DENIS HOMEOWNERS ASSOCIATION

,

Cross

- defendant and Appellant. B295067

(Los Angeles County Super. Ct. No. BC704060 )

APPEAL from a n 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.

__________________________2 Cross

- defendant St. Denis Homeowners Association (HOA) appeals from the trial court’s grant of cross

- complainant Patricia Kelly’s (Kelly) applicatio n 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 fi nding 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

res idential 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 t he 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.3 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 ap proval 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 violate d 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 no t allowed to
attend. Kelly sought prel iminary 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 con tain ed 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

m embers. 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 not4

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 tha t the trees in Planters 3a and 3b we re causing leaks in the garage.
Vanderslice recommend ed 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 pl ans 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 injunct ion. 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.5

the CC&Rs “to perform routine maintenance which inc ludes repair and landscaping. ” Based on the evidence presented at the hearing, the court made the prelim inary 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 comp ared 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 inju nction, 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. [Ci tation.]

. . . [¶] The trial
court’ s det ermination must be guided by a ‘mix’ of the potential

merit and interim

- harm fac tors; the greater the plaintiff’ s6

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 expres s 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 Ass n v. VRT Corp. (1998) 63 Cal.App.4th 1396,
1402 ( 14859 Moorpar k ).) 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. [Citat ions.].” ( Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 ; s ee 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 abused7

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 li ght 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 w ould proceed to remove the8

trees
, and Kelly would have no reason to continue to litigate her claims for injunctive relief

. Were the HOA t o 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 a rgum ent 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 t o 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 als o 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 submit ted 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, st ated 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 show s that the court’s preliminary injunction preven ted the HOA from installing a fence and security cameras.9

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 weigh ed heavily in Kelly’s
favor. We also observe that the inju nction preserves the status quo pending trial. (See Brown v. Pacifica F oundation , Inc. ( 2019) 34 Cal.App.5th 915, 925.
3. Likelihood of Success on the M erits
We turn n ext 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 Clubdomini u n Homeowners Ass n

. (1999) 21 Cal.4th 249 ( Lamden ) for judicial
deference to a homeowner s association’s decision about maintenance or repair of a development’s common areas. The
HOA a rgues the proposal to remove the trees amounted to a matter of “ordinary maintenance” entitled to defe rence 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 a ddress 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.10 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 excavat e 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,

a rguing that the a ssociation 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 t h e 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.)
T he Supreme Court agreed with the trial court and announced a rule of “judicial deference” to the ordinary
maintena nce decisions of homeowner associations: “Where a duly

c onstituted 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 t he 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, c ourts should defer to the board’ s authority and presumed expertise.” ( Lamden, supra , 21 Cal.4th at p. 253.)11 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 contr act and declaratory relief claims’ allegation s 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 nu isance 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, t he court found the
HOA made a decision in the best interests of the homeowner s. In other words, the decision to remove the tree s 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 with12

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 ana lysis 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 th e 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, §§ 49 00 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 no t 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 m ight make at trial.13

[an] ‘executi ve 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.) “Be cause 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 publicl y 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 requirem ents, 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, person nel matters, or to

meet with a member, upon the member’s request, regarding the14

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).)
T he 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 p p . 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 substantia l evidence to suppor t the rulings”]

. ) T he 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] dec laratory 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 j udicial deference to a board’s repair and
maintenance decisions under Lamden do es 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.) Th is relative competence has no bearing on a decision by the Board to exclude15

a member from attending its meetin g s

. 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 dec isions 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,” a nd attached several notices of board meetings and communications written by the community manager indicating the Board had do ne 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 th e 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 A ct.

6 In the trial court, the Board attempted to justify it s 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.16 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.