Filed 1/29/15; pub. order 2/20/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT

RYLAND MEWS HOMEOWNERS                                     H039754
ASSOCIATION,                                              (Santa Clara County
                                                           Super. Ct. No. 112CV228260)
         Plaintiff and Respondent,

         v.

RUBEN MUNOZ,

         Defendant and Appellant.


         In this dispute between defendant Ruben Munoz and plaintiff Ryland Mews
Homeowners Association (HOA or Association), plaintiff obtained a preliminary
injunction requiring Munoz to remedy the unauthorized modification of the flooring in
his upstairs condominium unit to reduce the transmission of noise to the unit below.
Defendant contends that the superior court improperly balanced the prospective harm to
each party and erroneously concluded that plaintiff would prevail at trial. We find no
abuse of discretion and will therefore affirm the order.
                                                  Background
         When defendant and his wife moved into unit No. 322 of the subject property in
February 2011, he replaced the carpets with hardwood floors to accommodate his wife’s
severe dust allergy. After the installation, Resty Cruz and David Yborra, occupants of
the unit below, began to experience “sound transfer” through the floor. Before
defendant’s occupancy Cruz and Yborra had never had any problems with sound
transmission from above. But after February 2011 the noise from upstairs at all hours of
day and night became “greatly amplified” and “intolerable,” so that Cruz and Yborra
found it difficult to relax, read a book, watch television, or sleep.
        On November 28, 2011, Susan Hoffman, an employee of the firm that provided
property management services for the Association, wrote to defendant, notifying him that
his alteration of the flooring appeared to have been made without prior approval of the
HOA. Hoffman requested a copy of the written approval in the event that the property
management files were incomplete. Defendant did not respond within the 30 days
Hoffman had given him, so on January 31, 2012, with authorization from the HOA board
of directors, Hoffman wrote to defendant again, this time requesting alternative dispute
resolution (ADR) under the Davis-Stirling Act, former Civil Code section 1369.530 (now
Civ. Code, § 5935).1 Included in the letter was the text of former section 1369.530,
which expressly allowed defendant 30 days in which to accept or reject ADR; after that
period, the request was to be deemed rejected. (Former § 1369.530, subd. (c).)
Defendant still did not respond.
        Plaintiff brought this action on July 12, 2012, seeking an injunction and
declaratory relief. Plaintiff alleged that defendant had violated the restrictions applicable
to all residents at the time of the floor installation. On September 28, 2012, plaintiff
applied for a preliminary injunction, “restraining and enjoining” defendant from
“[m]aintaining hardwood flooring” and from violating other HOA restrictions.
Attaching declarations from Hoffman, Cruz, and Yborra, plaintiff alleged that without the
requested injunction, adjacent homeowners would continue to suffer “great and
immediate irreparable harm in that Defendant’s hardwood floors create an acoustic
nuisance, both violating the neighboring owner’s sense of quiet enjoyment, but also [sic]
reducing property values for all owners within the Association.” Plaintiff further asserted


1
    All further statutory references are to the Civil Code.

                                               2
that it was “inevitable” that it would ultimately prevail in the action and that compliance
with the HOA rules would be of only “moderate” cost to defendant.
       Defendant opposed the motion, contending that hardwood floors were necessary in
his home because his wife was severely allergic to dust; consequently, removing the
floors and installing new floors not only would be expensive but would endanger his
wife’s health. He found the likelihood of plaintiff’s success on the merits to be
“questionable” and maintained that no irreparable harm had been shown. Both defendant
and his wife, Elena Delgado, submitted declarations describing Delgado’s medical
condition. Defendant also stated that he had received no complaints about noise between
the time of installation in February 2011 and the notice of November 28, 2011.
       On December 12, 2012, defendant moved to strike the complaint, enter judgment
on the pleadings, and refer the matter to ADR. Defendant contended that plaintiff had
failed to file a certificate stating that the ADR requirements set forth in former
section 1369.530 had been met or waived. The court granted defendant’s motion to strike
as authorized by former section 1369.560, subdivision (b). It granted plaintiff leave to
amend, however, and it denied defendant’s motion for judgment on the pleadings as well
as his request for referral to ADR. Plaintiff then amended its complaint and submitted a
certificate of compliance in accordance with former section 1369.560,
subdivision (a)(2)(3).
       The hearing on the injunction request took place on December 13, 2012. The
court confirmed with plaintiff that it was not demanding that defendant “tear up the
floors,” but sought only a “proposal through a contractor” for a modification consistent
with the HOA rules. Plaintiff added a request for an interim solution, that throw rugs be
placed on 80 percent of the floors outside the kitchen and bath areas. The court found
those suggestions reasonable and granted the request. Its written order, however, was not
filed until April 2013.

                                              3
       In March 2013 defendant demurred to the first amended complaint and again
moved to strike, alleging an insufficient certificate showing compliance with the statutory
ADR provisions, plaintiff’s failure “to state facts demonstrating a cause of action,” and
its failure “to demonstrate the necessity for injunctive relief.” This time, however, the
court overruled the demurrer and denied the motion to strike, observing that factual
disputes existed which should not be resolved at the pleading stage of the litigation.
       On the same day, April 17, 2013, the court filed its order granting the preliminary
injunction. As the language of the order informs defendant’s analysis of it as an
unjustified mandatory injunction, we quote the relevant portions: “1. Any further
installation of flooring or floor covering in your separate interest located at 435 N. 2nd
St. #322 San Jose, CA shall be in compliance with the Association governing documents.
[¶] 2. You shall reduce undue transmission of acoustic trespass or nuisance from the
subject unit in violation of the governing documents. Such transmissions shall be
reduced as follows: . . . 80% of the total flooring area, other than kitchen or bathrooms[,]
must be covered with throw rugs or comparable sound[-]dampening material, in
particular those areas with heavy travel such as hallways; [¶] 3. You shall present to the
Ryland Mews Homeowners Association, through its Board of Directors or design review
committee, a proposal for modification to the existing floor covering, such proposal to be
within the specific approved guidelines and specifications for floor covering
modifications established by the Association.” The modification proposal had to be
submitted within 30 days. If plaintiff rejected the proposal in good faith, based on the
Association’s architectural standards, defendant then had an additional 15 days to
supplement or revise his proposal. If defendant’s plans were approved, defendant had
15 days thereafter to initiate construction of the modifications and 60 days to complete
the construction. He then was required to notify the Association and “cooperate with a



                                              4
compliance inspection.” From that order granting the injunction defendant brought this
timely appeal.
                                              Discussion
       Defendant raises two issues on appeal. He first contends that the court abused its
discretion in granting the injunction, which he classifies as mandatory. He then asserts
that the court “lacked jurisdiction” to issue the injunction because the ADR request did
not comply with former section 1369.530 (now § 5935). Because this second issue will
be dispositive if defendant is correct, we address it first.
1. Compliance with former section 1369.530
       Under former section 1369.520 plaintiff, as an association managing a common
interest development, was prohibited from filing an action for declaratory, injunctive, or
writ relief against defendant unless the parties had “endeavored to submit their dispute to
alternative dispute resolution pursuant to this article.” Plaintiff could initiate this process
by complying with former section 1369.530. That section required plaintiff to serve on
defendant a “Request for Resolution” containing the following: (1) A brief description
of the dispute between the parties. [¶] (2) A request for alternative dispute resolution.
[¶] (3) A notice that the party receiving the Request for Resolution is required to respond
within 30 days of receipt or the request will be deemed rejected. [¶] (4) If the party on
whom the request is served is the owner of a separate interest, a copy of this article.”
       Defendant’s grievance is directed at the last condition. He complains that he did
not receive a copy of the entire article, which comprised the ADR provisions applicable
to common interest developments. (See former §§ 1369.510-1369.570.) Defendant
insists that in its ADR request to him plaintiff did not substantially comply with
section 1369.530, subdivision (a)(4), when it included a copy of only that statute. He
then contends, “Because Mr. Munoz challenged the defect by way of a demurrer and a
motion to strike, the trial court should have granted his relief.”

                                               5
       We are not, however, reviewing the court’s order overruling defendant’s demurrer
                                                                   2
and denying his motion to strike the first amended complaint. It was in that demurrer
and motion to strike, not his opposition to the injunction, that defendant raised the issue
of noncompliance with former section 1369.530. Furthermore, defendant cites no
authority for his assertion that plaintiff’s failure to provide the entire article 2 in
requesting ADR deprived the court of jurisdiction to issue the preliminary injunction.
       Nor does he identify any prejudice attributable to plaintiff’s technical deficiency in
complying with the statute. While pointing out that the “obvious purpose” of former
section 1369.530, subdivision (a)(4), is to “apprise the owner of important procedural
rights and duties involved in the ADR process,” defendant, an attorney, has never
asserted that he did not understand his rights. The letter he received requesting ADR
informed him that he had 30 days to accept or reject the request, and that if he did not
respond, he would be deemed to have rejected it. He implicitly rejected the request.
Although the request letter contained the entire text of former section 1369.530—
including subdivision (a)(4), the provision requiring plaintiff to provide a copy of
article 2—defendant never complained that he had not received the entirety of that article
until his motion to strike the complaint. And even then his supporting declaration did not
relate any confusion about or misunderstanding of his rights. Also absent in defendant’s
argument is any indication that he would have accepted plaintiff’s request if he had
received the entire article governing the procedures involved in ADR between him and




2
   The challenge to this order was made by a petition for writ of mandate, which this
court summarily denied. On appeal defendant duplicates the argument raised in the
petition, even to the extent that he refers to himself as the real party in interest.

                                                6
the Association. In these circumstances we cannot find prejudice in the omission of the
                                               3
remaining statutory provisions in article 2.
2. Merits of the Preliminary Injunction Request
       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. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999; Common Cause v.
Board of Supervisors (1989) 49 Cal.3d 432.) “[T]he decision to grant a preliminary
injunction rests in the sound discretion of the trial court.” (IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63, 69.) Accordingly, on appeal we review that decision for abuse of
discretion. “A trial court will be found to have abused its discretion only when it has
‘ “exceeded the bounds of reason or contravened the uncontradicted evidence.” ’
[Citations.] Further, the burden rests with the party challenging the injunction to make a
clear showing of an abuse of discretion.” (Ibid.; Oiye v. Fox (2012) 211 Cal.App.4th
1036, 1047.)
       In reviewing the lower court’s ruling for abuse of discretion, we do not reweigh
the evidence or evaluate the credibility of witnesses. “ ‘[T]he trial court is the judge of
the credibility of the affidavits filed in support of the application for preliminary

3
   In addition to former section 1369.530, article 2 consisted of (1) an explanation of the
terms “[a]lternative dispute resolution” and “[e]nforcement action” (former § 1369.510);
(2) the requirement that ADR be attempted before an association may file an action for
injunctive, declaratory, or writ relief (former § 1369.520); (3) the requirement that ADR
be completed within 90 days (former § 1369.540); (4) the tolling of the statute of
limitations after the ADR request is served (former § 1369.550); (5) the requirement of a
certificate of compliance (former § 1369.560); (6) referral of the action to ADR by
stipulation of the parties (former § 1369.570); (7) a provision governing the court’s
consideration of fees and costs (former § 1369.580); and (8) a requirement that an
association provide the members with an annual summary of article 2 (former
§ 1369.590).

                                                   7
injunction and it is that court’s province to resolve conflicts.’ [Citation.] Our task is to
ensure that the trial court’s factual determinations, whether express or implied, are
supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light
most favorable to the prevailing party and indulge in all reasonable inferences in support
of the trial court’s order.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th
618, 625.)
       Defendant contends that a higher level of scrutiny is called for here because the
                                                                                        4
superior court’s order was “clearly a mandatory injunction,” not a prohibitory one. In
his view the injunction “cannot bear that scrutiny because the facts presented in support
of the injunction did not demonstrate that this was an extreme case in which the right to
mandatory injunctive relief was clear, or that irreparable harm would ensue without the
order actually granted.”
       Defendant’s argument in effect asks this court to reweigh the evidence. He repeats
his assertion that he did not violate the HOA restrictions; two of the alleged rules “didn’t
exist when he installed the hardwood floors. He couldn’t have breached them.” He
further suggests that his own opposition “cast[s] severe doubt on the credibility of the
sound problems described by Mr. Yborra and Mr. Cruz.” Defendant further contests the
remedy imposed in the injunction. Noting the interim measure of using throw rugs on the



4
   “ ‘[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.’ ” (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1048,
quoting Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.)
Although a preliminary mandatory injunction is subject to stricter review on appeal,
(Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493), “[t]he
principles upon which mandatory and prohibitory injunctions are granted do not
materially differ. The courts are perhaps more reluctant to interpose the mandatory writ,
but in a proper case it is never denied.” (Allen v. Stowell (1905) 145 Cal. 666, 669.)

                                               8
floors, he insists that there were “other, less draconian” remedies than “requiring
Mr. Munoz to tear out his entire floor.”
       Defendant’s analysis is flawed. Not only does he request an improper reweighing
of the witnesses’ credibility, his contentions are premised on an inaccurate representation
of the evidence presented below. Contrary to defendant’s assumption, for example,
plaintiff was not relying on the 2012 HOA rules; in asking for the injunction it clearly
relied on the 1993 “Declaration of Restrictions,” which was in effect when defendant
replaced the carpeting with hardwood floors. Section 3.3 of that document provided, “No
activity shall be conducted in any Unit or Common Area that constitutes a nuisance or
unreasonably interferes with the use or quiet enjoyment of the occupants of any other
Condominium.” Section 3.17 more specifically stated, “No Unit shall be altered in any
manner that would increase sound transmission to any adjoining or other Unit, including,
but not limited to, the replacement or modification of any flooring or floor covering that
increases sound transmissions to any lower Unit.” And under section 7.2(v), prior written
approval had to be obtained from the Architectural Review Committee before “[a]ny
replacement or modification to any floor coverings or wall or ceiling materials or any
penetration or other disturbance of any wall, floor, or ceiling, if the replacement[,]
modification, penetration or disturbance could result in any increase in the sound
transmissions from the Unit to any other Unit.” Defendant’s protest that he was wrongly
accused of violating nonexistent restrictions is without merit.
       Defendant further misrepresents the court’s order. The court did not direct him to
tear out the hardwood floors; at the hearing it emphasized more than once that it did not
want anyone inferring that “he’s got to go back out and tear up the floors. That’s not
what I’m ordering.” What the court did order was a proposal from defendant to the board
of directors or to a design review committee for modifying the floors to bring them into
compliance with the guidelines established by the association.

                                              9
       We see no abuse of discretion in such an order, even if the injunction was of a
mandatory rather than prohibitory nature subject to heightened appellate scrutiny.
Indeed, the directive to find a compromise in modifying the flooring, as well as the
interim remedy of using throw rugs, reflected a balanced consideration of the
circumstances of everyone involved, including the residents below who were adversely
affected by defendant’s violation of the noise and nuisance restrictions. The finding that
defendant’s violation of the HOA rules had resulted in a continuing “great nuisance” for
the occupants below was supported by substantial evidence in the declarations of Cruz
and Yborra, whose credibility was for the superior court, not this court, to determine.
The evidence clearly supported the court’s weighing of the relative interim harm to the
parties and its implied determination that plaintiff would ultimately prevail on the merits.
We must conclude, therefore, that defendant has failed to meet his burden to show that
the court exceeded the bounds of reason or contravened uncontradicted evidence.
Reversal is not required.
                                        Disposition
       The order is affirmed.


                                          _________________________________
                                          ELIA, Acting P. J.


WE CONCUR:


_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
MIHARA, J.

                                             10
Filed 2/20/15
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT

RYLAND MEWS HOMEOWNERS                              H039754
ASSOCIATION,                                       (Santa Clara County
                                                    Super. Ct. No. 112CV228260)
         Plaintiff and Respondent,

         v.

RUBEN MUNOZ,

         Defendant and Appellant.


BY THE COURT:

         The opinion which was filed on January 29, 2015, is certified for publication.


                                           _____________________________
                                           ELIA, Acting P.J.


                                           _____________________________
                                           BAMATTRE-MANOUKIAN, J.


                                           _____________________________
                                           MIHARA, J.

       The written opinion which was filed on January 29, 2015, has now been certified
for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is
therefore ordered that the opinion be published in the official reports.


Dated:                                     ______________________________________
                                           ELIA, Acting P.J.

                                              11
Trial Court:                           Santa Clara County Superior Court
                                       Superior Court No. 112CV228260


Trial Judge:                           Hon. Peter H. Kirwan


Counsel for Plaintiffs/ Respondents:   Plastiras & Terrizzi
Ryland Mews Homeowners Association     Michael Patrick Terrizzi; Mariam
                                       Smairat

Counsel for Defendants/Appellants:     Ruben Munoz, in pro. per.; and
Ruben Munoz                            John M. Wadsworth [Retained]




Ryland Mews Homeowners Association v. Munoz
H039754
