Nahrstedt v. Lakeside Village Condominium Assn.

• Decision Date: 28 August 1992
• Docket Number: No. B053259,B053259
• Citation: 11 Cal.Rptr.2d 299,15 Cal.App.4th 315
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 15 Cal.App.4th 315, 20 Cal.App.4th 539, 25 Cal.App.4th 1473, 9 Cal.App.4th 1 15 Cal.App.4th 315, 20 Cal.App.4th 539, 25 Cal.App.4th 1473, 9 Cal.App.4th 1 Natore A. NAHRSTEDT, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOC., INC., et al., Defendants and Respondents.

Page 299

11 Cal.Rptr.2d 299

Previously published at 15 Cal.App.4th 315, 20 Cal.App.4th 539, 25 Cal.App.4th 1473, 9 Cal.App.4th 1

15 Cal.App.4th 315, 20 Cal.App.4th 539, 25 Cal.App.4th 1473,

9 Cal.App.4th 1

Natore A. NAHRSTEDT, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOC., INC., et al., Defendants and Respondents.

No. B053259.

Court of Appeal, Second District, Division 3, California.

Aug. 28, 1992.

Review Granted Nov. 19, 1992.

[25 Cal.App.4th 1479] Joel F. Tamraz, Santa Monica, for plaintiff and appellant.

Wilner, Klein & Siegel, Leonard Siegel, Laura J. Snoke and Thomas M. Ware, II, Beverly Hills, for defendants and respondents.

CROSKEY, Associate Justice.

This action concerns (1) a plaintiff who wishes to continue living with her three pet cats in the condominium she owns, (2) a provision in the recorded covenants, conditions and restrictions ("CC & R's") governing that condominium, which prohibits owners of the units in her condominium project Defendants contend that plaintiff's appeal violates the "one final judgment rule" because there is an outstanding cross-complaint filed by one of the defendants, Lakeside Village Homeowners Association ("Homeowners Association"). As we find the appeal is proper as to all the other defendants, we treat the appeal as to the Homeowners Association as a petition for a writ of mandamus. The interests of judicial economy will be served by our resolution of these pleading issues so that there can be a single trial on both the complaint and the cross-complaint.

from keeping most types of pets, and (3) the authority of the board of directors of her homeowners association to levy monetary fines on homeowners who violate that pet restriction. Plaintiff has filed this action to obtain, among other things, a declaration that she (1) is entitled to keep her pets in her condominium, notwithstanding the CC & R's ¹ and (2) has no legal obligation to pay the fines which have been assessed against her for her refusal to move her cats out of her condominium. This case comes to us on an appeal from a judgment of dismissal which was entered after the trial court sustained, without leave to amend, demurrers to all six causes of action in plaintiff's original complaint.

We conclude that plaintiff has stated at least three causes of action and should have been given leave to amend her complaint in order to state additional causes of action if she can. Therefore, the judgment of dismissal will be reversed and the cause remanded for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND ²

1. The Parties

Plaintiff resides in the Lakeside Village Condominiums in Culver City. She filed her complaint on February 20, 1990 and named as defendants the Lakeside Village Condominium Association ("Condominium Association"), the Homeowners Association, and certain persons alleged in the complaint to be employees, agents, officers and directors of the Homeowners Association and the Condominium Association.

2. The Complaint

We describe here, in turn, the essential allegations of each of the six causes of action in the complaint. Causes of action two through six each reallege all of the prior charging allegations.

a. Plaintiff's first cause of action is for invasion of privacy. In it she alleges that Article VII, section 11 of the CC & R's for the condominium project provides in part: "No animals (which shall mean dogs and cats), livestock, reptiles or poultry shall be kept in any unit except that usual and ordinary domestic fish and birds (and [sic] inside bird cages) may be kept as household pets within any unit; provided (a) they are not kept, bred or raised for commercial purposes or in unreasonable numbers; and (b) prior written approval of the Board [of Directors of the Condominium Association] is first obtained. As used herein, 'unreasonable numbers' shall be determined by the Board, but in no event shall such term be construed so as to permit the maintenance by any owner of more than two (2) pets per unit. The Association shall have the right to prohibit maintenance of any pet which constitutes, in the opinion of the Board, a nuisance to any other owner."

Plaintiff alleges that her three cats at all times remain inside her unit and are noiseless and not a nuisance; that beginning in July 1988 defendants peered into and entered her condominium without a compelling reason to do so and in violation of the California Constitution's provision for privacy, found in Article 1, section 1 thereof; that defendants have harassed plaintiff by b. Plaintiff's second cause of action is for declaratory relief. She alleges that the "cat provision" in the CC & R's is overly broad and, as applied to her, violates her constitutional right to privacy; that the requisite state action is present because of the small claims court actions brought against her for the fines levied on her; that the cat provision is "unreasonable" under Civil Code section 1354; ³ that the defendants believe the cat provision is constitutional and enforceable; and that an actual controversy exists between herself and defendants regarding said provision.

assessing penalties against her in increasingly large amounts, (beginning with $25/month and increasing in steps to $500/month), to penalize her for keeping her pet cats; and that the assessments are in violation of the CC & R's and in violation of her right to privacy.

c. Plaintiff's third and fourth causes of action are for intentional and negligent infliction of emotional distress, respectively. In the former, she alleges that defendants have assessed fines against her as a penalty for keeping her cats; that the cats are not a nuisance, are clean, are kept inside her unit and have not been the object of complaints by any of her close neighbors; that defendants' acts in assessing her fines which are unauthorized, have been designed to inflict emotional distress upon her and have done so; that as a result, plaintiff has had to seek medical attention; that the fines have been designed to force her to sell her condominium at an unreasonable price or remove her cats from her home; and that defendants' acts are intentional and malicious.

d. In the cause of action for negligent infliction of emotional distress, plaintiff alleges that defendants knew or should have known that she is excitable emotionally, that she is susceptible to being easily upset, and that she is susceptible of obsessing about defendants' unfair and unprovoked actions. Plaintiff further alleges that she is entitled to live in her home undisturbed and unharassed; that defendants' acts were negligent; that as a proximate result of said negligence, she suffered "profound shock to her nervous system, resulting in physical injuries, for which she has sought the help of physicians [and] psychologists"; and that she has incurred expenses associated therewith.

e. Plaintiff's fifth cause of action is labeled one "to invalidate penal assessments levied in excess of authority and for damages." In this cause of action, plaintiff alleges that although the CC & R's do provide for certain charges and assessments (i.e., regular monthly assessments, special assessments for capital improvements, and emergency assessments), no other assessments are provided for in the CC & R's. This cause of action also alleges that the cat assessments levied against plaintiff and against a "substantial portion" of the other condominium owners who also possess pets, are defendants' attempt "to reduce the regular maintenance assessments and capital expenditures assessments ... and offset other expenses...." Plaintiff further alleges that defendants' acts are a conversion of her money, are actions without authorization and are not acts on behalf of the Homeowners Association or the Condominium Association.

f. Plaintiff's sixth and last cause of action is for injunctive relief. In it, she alleges that the defendants threaten to impose a lien on her home as a means of 3. The Cross-Complaint

enforcing their pet assessments (which she estimates to be $6,000 per year) and she further alleges that the assessments and threatened lien could cause her to lose her home. She requests that the court enjoin defendants from making and enforcing the assessments.

Defendant Homeowners Association filed a cross-complaint against plaintiff alleging causes of action for nuisance and declaratory relief. ⁴ According to the cause of action for nuisance, article V, section 2(a) of the CC & R's gives "the Board" ⁵ authority to adopt rules and regulations necessary to enforce the CC & R's and the board has adopted rules that authorize the issuance of fines to enforce the board's rule against pets. Additionally, the cross-complaint alleges that article XV, section 2 of the CC & R's provides that any violation of the CC & R's constitutes a nuisance and shall be subjected to the remedies allowed at law or in equity against a nuisance. Homeowners Association seeks an injunction against plaintiff's maintenance of the cats in her home.

In its cause of action for declaratory relief, Homeowners Association alleges: "An actual controversy has arisen and now exists between the [Homeowners] Association and [plaintiff] as to the validity of the pet restriction in the CC & R's and her right to violate the pet restriction and refuse to pay fines assessed against her for such violation. [p] Cross-complainant desires a judicial determination of the respective rights and duties of the [Homeowners] Association and [plaintiff] with respect to enforcement of the aforesaid CC & R provisions. [Homeowners] Association desires a judicial determination that the pet restriction is reasonable and enforceable, that fines assessed for its violation are reasonable and enforceable, and that [plaintiff] is to be ordered to remove the pets from her unit and pay the assessed fines. [p] Such a declaration is necessary and appropriate at this time in order that the [Homeowners]...