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,

Cross-complainant and

Respondent,

v.

ST. DENIS HOMEOWNERS 

ASSOCIATION,

Cross-defendant and

Appellant.

B295067

(Los Angeles County 

Super. Ct. No. BC704060)

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.

__________________________
2

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.
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 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 
4

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. 
5

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 potentialmerit and interim-harm factors; the greater the plaintiff’s 
6

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 
7

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 
8

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.
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 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. 
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 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.)
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 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 
12

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.
13

[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 
14

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 
15

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.
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.