Cathedral Hill Tower Condo. Ass'n v. Garbar

• Decision Date: 29 June 2012
• Docket Number: A124711
• Parties: CATHEDRAL HILL TOWER CONDOMINIUM ASSOCIATION, Plaintiff, Cross-defendant and Appellant, v. LARISA GARBAR et al., Defendants, Cross-complainants and Appellants.
• Court: California Court of Appeals Court of Appeals

CATHEDRAL HILL TOWER CONDOMINIUM ASSOCIATION, Plaintiff, Cross-defendant and Appellant, v. LARISA GARBAR et al., Defendants, Cross-complainants and Appellants.

A124711

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Dated: June 29, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(City & County of San Francisco Super. Ct. No. CGC 04-432068)

Respondent Cathedral Hill Tower Condominium Association (the Association) brought this action in 2004 to preclude condominium unit owner Larisa Garbar from installing ceramic tile on her balcony and to compel her to remove unauthorized renovations that violated the Tower's covenants, conditions, and restrictions (CC&Rs). In a cross-complaint, Garbar and her fiance, Michael Rabichev (defendants) sought to recover damages for excess heat and noise in the unit, allegedly caused by the Association's failure to maintain the Tower's mechanical room above it.¹

The trial court sustained a demurrer to defendants' cross-complaint without leave to amend and granted the Association summary adjudication as to the balcony tile. After a bench trial, the court found Garbar violated the CC&Rs by failing to obtain approval for her renovations and by constructing a raised ceiling that encroached upon the common area above her unit. The court denied injunctive relief requiring restoration of the unit's originalceiling, but granted the Association continued use of the common area ceiling space. The court deemed the Association the prevailing party and awarded attorney fees.

Defendants challenge the orders dismissing their cross-complaint and granting summary adjudication, the judgment, and the attorney fee award. The Association also appeals from the judgment, contending the trial court erred in denying injunctive relief.

We reverse the judgment as it relates to the cross-complaint and the prevailing party determination, but otherwise affirm it. We also reverse the attorney fee award.

FACTUAL AND PROCEDURAL BACKGROUND

Cathedral Hill Tower (Tower) is a 25-story, 137-unit building in San Francisco, which was built in 1966 and converted to condominiums in 1982, with the adoption of CC&Rs that incorporate a recorded condominium map.

In May 2001, defendants purchased condominium unit 24D, a one bedroom unit on the Tower's top residential floor.² In June 2001, they began extensive renovations, which included installation of hardwood floors throughout the unit and ceramic tile on the balcony, remodeling of the kitchen and bathroom, removal of the unit's original ceiling, and construction of a raised architectural ceiling.

On August 29, 2001, the Association's board of directors (Board) sent Garbar a letter asking her to stop work immediately and submit her renovation plans to the Board for review, as required by the CC&Rs. (Art. III, § 5 ["With respect to any alteration or modification of a unit requiring a building permit from the City of San Francisco, the plans must be first submitted in writing to the Board"].) The Board found Garbar's response insufficient and asked her to provide the floor specifications and "some detail on the elevation of each room[,] as it appears you may be encroaching into the common area." Garbar sent the Board "all the plans . . . that were submitted to [the] City for the building permit . . . ," as well as a sample of the flooring material. She said she had offered to submit her plans to the Board before construction, but real estate agent Darrell Wineman (Wineman) told her "this had not been done in many years." She said she had "made nosecret about [her] design and building objectives" with property manager Karen Collingwood (Collingwood) and Board vice-president, George Naganuma (Naganuma), and Naganuma had approved the hardwood floors. She said her renovations were "nearly complete."

In response, Naganuma denied approving hardwood floors and stated Collingwood "has no specific information other than that you planned to perform remodeling and you planned to draw the necessary . . . permits . . . ." He told Garbar her plans were "quite incomplete," as she had provided no information regarding the ceiling. Garbar replied that no plans were created for the ceiling and noted: "The construction is almost complete and, upon finalizing of finishes, I hope to move in very soon."

Defendants moved into the unit in late October or November 2001. The parties continued to discuss the encroachment issue, as well as defendants' complaints regarding excess heat and noise in their unit. In 2003, a dispute arose regarding the Association's plan to waterproof the Tower.

The Complaint

In June 2004, the Association filed a complaint against Garbar based on allegations that she violated the CC&Rs: (1) by refusing access to her unit for the waterproofing work, including removal of her balcony tile, and seeking to retile her balcony after the project's completion; and (2) by failing to obtain Board approval for her renovations, installing hardwood floors, and encroaching upon the common area above her unit's original ceiling. The Association sought a declaration of the parties' rights and obligations and injunctions preventing Garbar from interfering with the waterproofing and retiling her balcony, and requiring her to restore the unit to its original condition.

Defendants' Cross-Complaint

In July 2004, defendants filed a cross-complaint for damages, asserting causes of action for nuisance, negligence, invasion of privacy; and intentional infliction of emotional distress (IIED) against the Association and four Board members based on allegations that outdated, inadequately ventilated, and poorly maintained equipment in the mechanical room directly above their unit was producing excess noise and heat.

The trial court sustained a demurrer to the cross-complaint with leave to amend, and defendants filed a first amended cross-complaint. The trial court sustained the Board members' demurrer to all of defendants' causes of action and sustained the Association's demurrer to Rabichev's claims on standing grounds, without leave to amend. This court affirmed the trial court's decision as it applied to the Board members, but reversed the order of dismissal of Rabichev's claims. (Cathedral Hill Tower Condominium Association v. Garbar et al. (May 31, 2006, A110379) [nonpub. opn.], 2006 Cal.App. Unpub. LEXIS 4752, pp. 4-5, 9-10, 18-19 (Cathedral Hill I).) The court held allegations of Rabichev's ownership were sufficient to survive demurrer on standing grounds, but found his allegations did not satisfy the standard set forth in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden). (Cathedral Hill I, pp. 11-13; see Lamden, pp. 260, 265 [adopting a rule of judicial deference to certain Board decisions].) The court directed the trial court to sustain the demurrer to Rabichev's claims, with leave to amend to state a claim against the Association under Lamden. (Cathedral Hill I, pp. 13, 19.)

Defendants filed a second amended cross-complaint against the Association, reasserting their tort causes of action, adding a cause of action for breach of contract, and asserting additional factual allegations in response to the court's analysis in Cathedral Hill I. The Association demurred, contending defendants' allegations did not satisfy Lamden, and the trial court sustained the demurrer with leave to amend. Defendants then filed the third amended cross-complaint at issue in this appeal. The Association demurred, contending the acts and omissions alleged were entitled to deference under Lamden. On August 15, 2007, the trial court sustained the demurrer without leave to amend and dismissed the cross-complaint.

The Motions for Summary Judgment/Adjudication

The Association and Garbar filed cross-motions for summary judgment, or alternatively, summary adjudication. The trial court denied summary judgment but granted summary adjudication of the Association's first cause of action, permanently enjoining Garbar from retiling her balcony.

Trial

In October 2008, the matter proceeded to a seven-day bench trial on the Association's claims that Garbar violated the CC&Rs by failing to obtain Board approval for her renovations, installing hardwood floors, and encroaching upon the common area above the unit's original sheetrock ceiling. At the outset of trial, Rabichev and the parties stipulated: "[A]ny judgment entered against . . . Garbar in this case may be enforced with equal force and effect against . . . Rabichev without the necessity to amend the judgment or otherwise."

At trial, Garbar maintained that the Board had not consistently enforced the approval requirement, that she had complied with the Board's approval practice as it existed in 2001, and that its enforcement action was selective and arbitrary. She also asserted defenses of waiver, estoppel, and laches, contending the Board was aware of the work in her unit from the outset and that Naganuma approved her hardwood floors. She denied encroaching upon the common area, claiming her unit's boundary extended to a concrete slab separating the unit from the floor above.

In a statement of decision, the trial court concluded: "[T]he area above the original sheetrock ceiling in [Garbar's] Unit is Common Area, and . . . by removing that sheetrock ceiling and extending the interior of the Unit upward . . . [,] [Garbar] has encroached into the Common Area." The trial court also concluded Board approval was required for defendants' renovations and they had failed to obtain it. The trial court rejected defendants' equitable defenses, finding no evidence the Board was aware of work in the common area until after August 2001,...